author: ANNABELLE Clinton IMBER, Justice. RAY THORNTON, Justice,

text:
    Louis ETOCH v. STATE of Arkansas
    00-573
    37 S.W.3d 186
    Supreme Court of Arkansas
    Opinion delivered January 18, 2001

      John Wesley Hall, for appellant.

      Mark Pryor, Att’y Gen., by: Misty Wilson Borkomki, Ass’t Att’y Gen., for appellee.
   ANNABELLE Clinton IMBER, Justice.

Appellant, Louis Etoch, challenges his conviction on two counts of criminal contempt in the Fulton County Circuit Court. Mr. Etoch argues that the evidence was insufficient to convict him of contempt and that the trial court erred by denying him a jury trial.

On May 21, 1999, the Saline County Circuit Court ordered Mr. Etoch to appear and show cause why he should not be held in contempt for his failure to appear for trial in the case of State v. Trett, on April 28, 1999, and in the case of State v. Johnson, on April 29, 1999. Mr. Etoch was counsel for the defendant in both cases. He admitted that he did not appear for trial on either date, but denied that his failure to appear for trial was contumacious conduct. Mr. Etoch further asserted that he was entitled to all of the constitutional protections afforded a criminal defendant and requested notice from Judge Kemp of the punishment contemplated for the alleged contempt. In an order filed on August 13, 1999, Judge Kemp stated that the range of punishment available to the court in a contempt proceeding was a sentence of up to one year, a fine of up to $1,000, or both. In light of this information, Mr. Etoch requested a jury trial. Judge Kemp recused from the case and it was reassigned to Judge John Norman Harkey, who denied Mr. Etoch’s request for a jury trial in an order filed on August 30, 1999.

On the morning of Wednesday, April 28, 1999, the case of State v. Trett was called to trial in the Fulton County Circuit Court. Mr. Etoch and his client did not appear. Mr. Etoch did appear that morning in the Brinkley Municipal Court in Monroe County. In response to the charge of criminal contempt for his failure to appear, Mr. Etoch testified that he was unaware that he was scheduled to appear that morning because he had anticipated that the trials ahead of his on the docket would last at least until Thursday morning, April 29, and that he expected someone to call him if his case was going to be called earlier. The State put on evidence, however, that Mr. Etoch made no attempt to ascertain whether he needed to appear for trial on April 28.

Thursday morning, April 29, 1999, Mr. Etoch again did not appear for trial in the Fulton County Circuit Court. Local co-counsel, Larry Kissee, appeared on his behalf to request a continuance in the matter of State v. Johnson, which was scheduled for trial that morning.

Mr. Etoch testified in his own defense that he was hospitalized on the night of April 28 for treatment of Giardia Lampa, an infectious bacteria he contracted while on a family vacation in Mexico the previous week. Mr. Etoch remained hospitalized until Friday, April 30. The State’s evidence demonstrated, however, that Mr. Etoch was not prepared for trial on April 29 and had no intention of going to trial on that date. The State presented evidence that Mr. Etoch had been physically capable of drafting several pleadings and traveling to Little Rock the day before trial to file a petition for writ of prohibition in the case scheduled for trial on April 29. Furthermore, although Mr. Etoch called his local co-counsel early in the evening to advise him that he could not appear for trial the next day, Mr. Etoch made no attempt to contact the trial court or the office of the prosecuting attorney to inform them that he was ill and would be unable to attend trial the next day.

On December 23, 1999, Mr. Etoch’s charges were tried to the court. At the close of all the evidence, the following colloquy occurred:

The COURT: I’m guessing that neither side wants oral argument or do you?
Defense Counsel: We request to brief the legal issue.

The court then recessed.

On January 7, 2000, Judge Harkey sent a letter to counsel requesting that both parties submit to the court a proposed decree suggesting (1) guilt or innocence, and (2) punishment. Both parties complied, submitting to the court proposed decrees favorable to their respective positions. In his proposed decree, Mr. Etoch argued several alternative factual and legal reasons why he should be found not guilty of both charges. On February 1, 2000, the Fulton County Circuit Court entered two orders finding Mr. Etoch to be in criminal contempt for failing to attend court on April 28 and 29, 1999. From these orders comes this appeal.

For his first point, Mr. Etoch argues that the trial court erred by denying his motion for a jury trial. For his second point, he argues that the evidence was insufficient to support a finding of guilt on either charge of criminal contempt. “Double jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence prior to other assignments of trial error.” Dixon v. State, 327 Ark. 105, 108, 937 S.W.2d 642 (1997) (citing Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996)).

Arkansas Rule of Criminal Procedure 33.1 provides:

(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution’s evidence, then the motion must be renewed at the close of all of the evidence.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment.

Rule 33.1 is strictly construed. Thomas v. State, 315 Ark. 504, 507, 868 S.W.2d 483 (1994). Mr. Etoch argues that his challenge to the sufficiency of the evidence in this matter is preserved because he filed a proposed order specifying the reasons upon which the charges of contempt should fail. However, the record clearly shows that Mr. Etoch did not make a motion for directed verdict or for dismissal at the close of the evidence. Mr. Etoch did not even submit the proposed order containing his arguments for a finding of not guilty until after the court requested it. By failing to make a timely motion for directed verdict, Mr. Etoch waived his challenge to the sufficiency of the evidence on appeal. Ark. R. Crim. P. 33.1(c).

Mr. Etoch next argues that the trial court erred when it denied him the right to a jury in his criminal contempt trial. We agree.

“Criminal penalties may not be imposed on an alleged contemnor who has not been afforded the protections that the Constitution requires of criminal proceedings.” Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988). However, “petty contempt like other petty criminal offenses may be tried without a jury.” Taylor v. Hayes, 418 U.S. 488 (1974). “Contempt of court is a petty offense when the penalty actually imposed does not exceed six months or a longer penalty has not been expressly authorized by statute.” Id.

Mr. Etoch was actually sentenced to only one day in jail on each conviction, with the sentences to run concurrently. The State argues that, because the sentence actually imposed upon Mr. Etoch was less than six months, he was not entitled to a jury trial under the reasoning of Taylor v. Hayes, supra. We adopted the rule set out in Taylor v. Hayes in Edwards v. Jameson, 283 Ark. 395, 677 S.W.2d 842 (1984). We noted, however, that “the better practice in cases of criminal contempt is for the trial judge to announce at the outset whether punishment in excess of six months may be imposed. If the judge does not contemplate the imposition of a greater sentence, a jury is not necessary; otherwise one may be demanded.” Id. (emphasis added). Stated in other words, under Arkansas law there is no right to a jury trial in a prosecution for criminal contempt unless the sentence actually imposed upon the contemnor is greater than six months, a sentence greater than six months is authorized by statute, or the trial court announces prior to trial that it is contemplating a sentence greater than six months in the particular case. Under any of these circumstances, the offense can no longer be considered “petty” because the contemplated sentence exceeds six months’ imprisonment. See Medlock v. State, 328 Ark. 229, 942 S.W.2d 861 (1997).

The dissent fails to recognize that in Taylor v. Hayes, supra, the U.S. Supreme Court did not address the situation where the trial court adopts the better practice recommended by Justice George Rose Smith in Edwards v. Jameson, supra, and announces prior to the trial that it is contemplating a sentence in excess of six months. In that circumstance, the State itself has determined the contempt is so severe that punishment in excess of a six-month sentence may be imposed. Thus, as we recognized in Edwards v. Jameson, supra, the alleged contemnor may demand a trial by jury.

In the instant case, we are confronted with just such a circumstance. Mr. Etoch asked the trial court to specify the range of possible sentences it was contemplating in his case. The trial judge issued an order stating that the range of punishment under consideration was a year in prison, $1000 fine, or both. Because Mr. Etoch was put on notice that the trial court did not consider the contempt charges lodged against him to be petty, he demanded a jury trial. His request was erroneously denied.

We hold that, by setting a range of possible punishment in excess of six months, the trial court removed the charges against Mr. Etoch from the realm of “petty” contempt. As a result, Mr. Etoch was entitled to a jury trial. The judgment of the trial court is therefore reversed, and this matter '<s remanded for further proceedings.

Thornton, J., dissenting.

Hannah, J., not participating.

RAY THORNTON, Justice,

dissenting. The majority holds that our dicta observation in Edwards v. Jameson, 283 Ark. 395, 677 S.W.2d 842 (1984), suggesting that “the better practice in cases of criminal contempt is for the trial judge to announce at the outset whether punishment in excess of six months may be imposed,” id., overrules the United States Supreme Court decision in Taylor v. Hays, 418 U.S. 488 (1974). The Supreme Court held that

[P]etty contempt like other petty offenses may be tried without a jury and that contempt of court is a petty offense when the penalty actually imposed does not exceed six months or a longer penalty has not been expressly authorized by statute

Id. (emphasis added).

We cited this rule in Edwards, supra, for the proposition that the defendant in that case was not entitled to a jury trial on the contempt issue when only a ninety-day sentence and $500 fine was imposed for criminal contempt. Justice George Rose Smith wrote:

The trial court correctly denied the petitioner’s request for a jury trial. Such a trial is mandatory only when the possible imprisonment may exceed six months. Taylor v. Hayes, 418 U.S. 488, 94 S. Ct. 2697, 41 L.Ed.2d 897 (1974). Here the trial judge was aware of that limitation and imposed only a ninety-day sentence. We point out that the better practice in cases of criminal contempt is for the trial judge to announce at the outset whether punishment in excess of six months may be imposed. If the judge does not contemplate the imposition of a greater sentence, a jury is not necessary; otherwise one may be demanded.

Edwards, supra.

Through dicta, Justice Smith mischaracterized the Court’s rule in Taylor, supra, which provides that a jury trial is not necessary unless the actual punishment is greater than six months, and writes that a jury trial may be demanded when the possible sentence exceeds six months. This marks the discrepancy in our case law. There should be no need for weighing the merits of the United States Supreme Court’s decision against a dicta observation in an Arkansas decision.

Here, the punishment actually imposed was one day in jail for each of the two offenses. It is obvious that a one-day sentence actually imposed does not meet either prong of the test of petty offenses specifically stated by the United States Supreme Court. The applicable statute, Ark. Code Ann. § 16-10-108(b)(l) (Repl. 1999), expressly authorizes the following punishment for contempt: “[T]he fines shall in no case exceed the sum of fifty dollars ($50.00) nor the imprisonment ten (10) days.” Id. Judge Kemp stated in his recusal order, charging Mr. Etoch with contempt, that a more severe sentence of one year per offense could be imposed. We have held that the power to punish for contempt is inherent in the courts, and they may go beyond the powers given by statute. Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993), and apparendy Judge Kemp recognized this inherent power of the courts to impose a more severe penalty. However, Judge Harkey, who heard the case and imposed the sentence for contempt, did not actually impose a sentence that exceeded six months, nor did the sentence exceed the length of the penalty “expressly authorized by statute.” Taylor, supra. Rather, Judge Harkey imposed a one-day sentence for each offense, thereby meeting both prongs of Taylor, supra.

For these reasons, the trial court should be affirmed. Neither the sentence actually imposed nor the penalty authorized by statute come anywhere close to the six months imprisonment that the United States Supreme Court established as a standard in Taylor, supra, before a jury trial is required. Thus, the trial court’s sentence to one-day imprisonment on each conviction does not warrant a reversal. I respectfully dissent.

       The punishment for contempt authorized by Ark. Code Ann. § 16-10-108(b)(l) (Repl. 1999) may be a fine not to exceed $50.00, imprisonment of no more than ten days, or both. We have held that the power to punish for contempt is inherent in courts and they may go beyond the powers given by the statute. Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993).


source: Caselaw Access Project

author: ANNABELLE Clinton IMBER Justice.

license: Public Domain

text:
    Johnny STUART v. ARKANSAS WELL WATER CONSTRUCTION COMMISSION
    00-840
    37 S.W.3d 573
    Supreme Court of Arkansas
    Opinion delivered January 18, 2001

      Appellant, pro se.

      A. Mark Bennett III and Edward C. Swaim, for appellee.
   ANNABELLE Clinton IMBER Justice.

Johnny Stuart, appearing pro se, appeals the order of the Lawrence County Circuit Court affirming the decisions of the Arkansas Water Well Construction Commission in two consolidated cases. Mr. Stuart was ordered by the Commission to pay civil penalties in the aggregate amount of $2,500 for violations of Commission regulations. He appeals, arguing that (1) he was deprived of his constitutional right to a trial by jury; (2) he is not bound by the Commission’s regulations; (3) the Commission was operating unconstitutionally; and, (4) he was not properly served notice of the alleged violations. Appellate review of Arkansas Water Well Construction Commission decisions is governed by the Administrative Procedure Act. Ark. Code Ann. §§ 17-50-106 (Repl. 1995); 25-15-201 et seq. (Repl. 1998).

We are unable to reach the merits of Mr. Stuart’s arguments in this matter because the abstract on appeal is flagrantly deficient. See Ark. Sup. Ct. R. 4-2 (b). An abstract must contain “such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.” Ark. Sup. Ct. R. 4-2(a)(6).

A summary of the pleadings and the order from which appeal is taken are the bare essentials of an abstract. D. Hawkins, Inc. v. Schumacher, 322 Ark. 437, 439, 909 S.W.2d 640, 641 (1995). In a civil case, the notice of appeal is also essential because it allows the appellate court to determine whether jurisdiction is proper. Johnson v. State, 342 Ark. 357, 364, 28 S.W.3d 286, 290 (2000). Finally, the agency’s findings of fact and conclusions of law are essential elements of an abstract in any appeal governed by the Administrative Procedure Act because appellate review is directed toward the decision of the agency, not that of the trial court. Bohannon v. Arkansas State Bd. of Nursing, 320 Ark. 169, 170, 895 S.W.2d 923 925 (1995); Arkansas St. Bank Comm’r v. Bank of Marvell, 304 Ark. 602, 604-05, 804 S.W.2d 692, 693 (1991); Ark. Code Ann. § 25-15-201 et seq. Pro se appellants are held to the same abstracting standards as attorneys. Qualls v. White, 342 Ark. 681, 683, 30 S.W.3d 735, 736 (2000).

Mr. Stuart’s abstract is flagrantly deficient because it does not contain any of the necessary elements listed above. He did not abstract the notice of appeal that demonstrates proper jurisdiction in this court, the Commission’s findings of fact and conclusions of law filed on August 25, 1999, or the Commission’s findings of fact and conclusions of law filed on September 7, 1999. Mr. Stuart filed only an incomplete abstract of the notices of appeal to the circuit court arising out of the aforementioned orders of the Commission.

Further deficiencies in Mr. Stuart’s abstract include his failure to abstract the adjudication hearing that occurred before the Commission on July 9, 1999. Although the supplemental abstract supplied by the appellee contains excerpts of testimony from this hearing that it contends support the Commission’s findings, Mr. Stuart does not abstract the arguments that were made to the Commission at that hearing. Mr. Stuart did present a partial abstract of the September 3, 1999 hearing before the Commission, but it is also incomplete because significant portions of the arguments made to the Commission on that date have not been abstracted. Finally, the January 4, 2000 motion hearing in the Lawrence County Circuit Court is not abstracted.

Although Mr. Stuart did abstract the briefs that he filed in this action, we are unable to discern from the abstract when those briefs were filed or at what level of the proceedings they were filed. If Mr. Stuart filed his briefs at the Commission, the abstract does not reveal whether the briefs were filed in both of the administrative actions that we have been asked to review.

In sum, we cannot discern from this record whether Mr. Stuart preserved his arguments for review or determine the factors that led to the decisions below. See D. Hawkins, Inc., v. Schumacher, supra. Because the abstract does not contain all of the information necessary to our resolution of the issues presented, we must summarily affirm the rulings of the Commission.

Affirmed.


author: JIM HANNAH, Justice.

text:
    Dr. Raul RAMIREZ and Beverly Enterprises v. WHITE COUNTY CIRCUIT COURT
    00-827
    38 S.W.3d 298
    Supreme Court of Arkansas
    Opinion delivered January 18, 2001

      Anderson, Murphy & Hopkins, L.L.P., by: David A. Littleton, for petitioner Dr. Raul Ramirez.

      Armstrong Allen, P.L.L.C., by: Charles A. Banks, E.B. “Chip” Chiles, IV, and Paul Woods, for petitioner Beverly Enterprises.

      Timothy O. Dudley, for respondent.
   JIM HANNAH, Justice.

This case arises from the death of Iris Harvey. Dr. Raul Ramirez and Beverly Enterprises-Arkansas, Inc, d/b/a/ Beverly Health and Rehabilitation Center-Searcy, petition this court for a writ of prohibition against the White County Circuit Court to prevent further prosecution of a wrongful death action, White County Circuit Court case number 99-423, David Harvey, as next of kin heir at law of Iris Harvey, Deceased v. Dr. Raul Ramirez and Beverly Enterprises-Arkansas, Inc, d/b/a/ Beverly Health and Rehabilitation Center-Searcy. David Harvey, plaintiff in the action below, has responded. This petition was filed in this court on July 18, 2000. On September 7, 2000, this court heard and granted a petition that this matter be submitted as a case.

Petitioners assert the circuit court lacks jurisdiction because plaintiff David Harvey is without standing to sue given he is only one of Iris Harvey’s heirs at law and all heirs at law must be joined in the lawsuit before heirs at law may bring a wrongful death action. David Harvey affirms that the issue before this court is whether a single heir at law can bring an action for wrongful death when there are other heirs at law who have not been joined. We have jurisdiction pursuant to Ark. Sup. Ct. R. l-2(a)(3), as a petition for a writ of prohibition to be directed to a circuit court. We conclude that under the current wrongful death statute, where a wrongful death action is pursued by heirs at law, all heirs at law must be joined in the action. Therefore, as only one of the heirs at law, David lacks standing under the wrongful death statute. This deprives the circuit court of jurisdiction. We hold that the writ of prohibition will lie.

Facts

On May 25, 1995, Iris Harvey died while in the care of petitioners. On May 14, 1997, Iris’ husband David filed a complaint as “Next of Kin and Husband of Iris Harvey, Deceased,” asserting his wife had died as a result of negligence in her care, and that he had suffered mental anguish as a result of his wife’s untimely death.

On May 14, 1995, Iris was in the care of Beverly Enterprises, when she was admitted to Central Arkansas Hospital by Dr. Raul Ramirez due to symptoms of congestive heart failure. David asserts that his wife’s blood potassium level was within normal limits when she was admitted, but that by the time she was released back into the care of Beverly Enterprises on May 19, 1995, her potassium level was abnormally high and untreated. He further alleges Dr. Ramirez prescribed medication during Iris’ therapy that further elevated her blood potassium level. He alleges in addition that after release from the hospital, Dr. Ramirez and Beverly Enterprises failed to properly monitor her potassium level and to order and or provide necessary electrolytes. David alleges that the negligence of Dr. Ramirez and Beverly Enterprises was the proximate cause of his wife’s death.

On October 21, 1997, petitioner Ramirez filed a motion for summary judgment asserting David lacked standing to pursue his wrongful death action because he was but one of the heirs at law and that the statute requires all heirs at law to be joined in the action. David filed a motion to substitute himself as administrator for the estate, as the party plaintiff to replace David Harvey as an individual, but the motion was denied. Summary judgment was granted as to all heirs at law excepting David. Thus, the trial court found that David’s action as an heir at law survived. No appeal was taken from these decisions of the trial court. However, shortly thereafter David non-suited the action and re-filed it as “David Harvey, as Next Kin and Heir at Law of Iris Harvey, Deceased” on December 13, 1999. Petitioners again moved for summary judgment, again asserting David lacked standing. The trial court ruled as it had the first time, finding David could sue as an individual heir at law. Petitioners now seek a writ of prohibition alleging the trial court erred in this decision and a lack of standing leaves the trial court wholly without jurisdiction.

Writ of Prohibition

Petitioners seek a writ to stop the circuit court from proceeding in this case because they allege there is no jurisdiction due to a lack of standing by plaintiff in the case in the trial court below. The party seeking to proceed by petition for writ of prohibition bears the burden of demonstrating that it is clearly entitled to so proceed. Nucor-Yamato Steel Company v. Circuit Court, 317 Ark. 493, 878 S.W.2d 745 (1994). Petitioners argue that under Ark. Code Ann. § 16-62-102(b) (1987), a wrongful death action may be pursued only by all the heirs at law, and not by just one as is being attempted in this case, that the plaintiff below lacks standing, and that, therefore, the trial court lacks jurisdiction. Thus, the issue is the legal question of whether the trial court has jurisdiction to hear David’s complaint.

In State v. Circuit Court of Lincoln County, 336 Ark. 122, 984 S.W.2d 412 (1999), this court stated:

A writ of prohibition is extraordinary relief which is appropriate only when the trial court is wholly without jurisdiction. Henderson Specialties, Inc. v. Boone County Circuit Court, 334 Ark. 111, 971 S.W.2d 234 (1998); Nucor Holding Co. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996). The writ is appropriate only when there is no other remedy, such as an appeal, available. Henderson Specialties, Inc. v. Boone County Circuit Court, supra; West Memphis Sch. Dist. No. 4 v. Circuit Court, 316 Ark. 290, 871 S.W.2d 368 (1994) (quoting National Sec. Fire & Cas. Co. v. Poskey, 309 Ark. 206, 828 S.W.2d 836 (1992)). When deciding whether prohibition will lie, we confine our review to the pleadings in the case. The Wise Company, Inc. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (1993).

See also, Willis v. Circuit Court of Phillips County, 342 Ark. 128, 27 S.W.3d 372 (2000); Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000). Jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties. Circuit Court of Lincoln County, 336 Ark. at 125.

Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than a factual question. Western Waste Indus. v. Purifoy, 326 Ark. 256, 930 S.W.2d 348 (1996); Fausett and Co. v. Bogard, 285 Ark. 124, 685 S.W.2d 153 (1985); Titsworth v. Mayfield, fudge, 241 Ark. 641, 409 S.W.2d 500 (1966). When jurisdiction depends on the establishment of facts or turns on facts which are in dispute, the issue is one correctly determined by the trial court. Steve Standridge Insurance Inc. v. Langston, 321 Ark. 331, 900 S.W.2d 955 (1995).

The issue before the trial court was an interpretation of Ark. Code Ann. § 16-62-102(b), and therefore was a legal question. Petitioners are not entitled to an appeal because they would be appealing from denial of a motion for summary judgment. “We have repeatedly held that the denial of a motion for summary judgment is not subject to review or appeal.” Bharodia v. Pledger, 340 Ark. 547, 11 S.W.3d 540 (2000); Daniels v. Colonial Ins. Co., 314 Ark. 49, 857 S.W.2d 162 (1993); Hastings v. Planters and Stockmen Bank, 307 Ark. 34, 818 S.W.2d 239 (1991); McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991). So, if there is no jurisdiction, the only way petitioners can obtain review by this court is by way of a petition for a writ of prohibition. Therefore, a petition for a writ of prohibition is a proper method to obtain review of jurisdiction by this court.

The issue before the court is whether an individual heir at law can bring a wrongful death action when he or she is not the only heir at law. The Wrongful Death Statute is Ark. Code Ann. § lb-62-102. Ark. Code Ann. § 16-62-102(2)(b) provides:

Every action shall be brought by and in the name of the personal representative of the deceased person. If there is no personal representative, then the action shall be brought by the heirs at law of the deceased person.

Statutory Construction

The question becomes one of statutory construction.

This Court in Babb v. Matlock, 340 Ark. 263, 9 S.W.3rd 508 (2000), stated:

Thus, because the action (wrongful death) is a statutory creation and is in derogation of or at variance with the common law, we construe the wrongful-death statute strictly. Id. Strict construction necessarily ‘requires that nothing be taken as intended that is not clearly expressed.’ Lawhon Farm Servs. v. Brown, 335 Ark. 272, 279, 984 S.W.2d 1, 4 (1998). Given that narrow standard, we must reject Appellants’ first argument, that we should broadly construe the class of statutory beneficiaries to include persons not specifically named. Babb, supra.

This court in McGinty v. Ballentine, 241 Ark. 533,408 S.W.2d 891 (1966), stated:

[ A]t common law no cause of action survived for wrongful death, and the only cause of action that arises is because of wrongful death statutes, which must be strictly adhered to in determining the cause of action, the parties, and the period of limitations.

In Smith v. Missouri Pac. Rd. Co., 175 Ark. 626, 1 S.W.2d 48 (1927), this court stated that as a cause of action created by statute, “it only exists in the manner and form and for the time prescribed by the statutes of the State which created it....” See also, Vines v. Ark. Power & Light Co., 232 Ark. 173, 337 S.W.2d 722 (1960).

The trial court interpreted Ark. Code Ann. § 16-62-102(b) and review of the court’s statutory interpretation is de novo. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Burnette v. Perkins & Assocs., 343 Ark. 237, 33 S.W.3d 145 (2000).

The plain-meaning rule is applied first. This court has said that in determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998). If the language of a statute is clear and unambiguous, and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000).

If the plain meaning is not evident from the statute itself, then interpretation must be undertaken. “The basic rule of statutory interpretation to which all other interpretative guides must yield is the necessity to give effect to the intent of the General Assembly.” Smith v. Smith, 341 Ark. 590, 19 S.W.3d 590 (2000) (quoting Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996)).

Standing

The facts are not in dispute. At the time the first complaint was filed on May 14, 1997, no estate had been opened for Iris Harvey. Ark. Code Ann. § 16-62-102(2) (b) requires that in the absence of a personal representative, the action shall be brought by the heirs at law. Iris Harvey had three heirs at law, her husband David, Randy Harvey, a son now thirty-six years of age, and Cynthia Casey, a daughter now forty-three years of age. Under Ark. Code Ann. § 16-62-102(d), all three individuals were beneficiaries under the wrongful death statute. The widower, David, filed the original complaint as David Harvey as Next of Kin and Husband of Iris Harvey, Deceased. The lawsuit was filed by an heir at law but not by all of the heirs at law. After David took a voluntary non-suit, David refiled the complaint on December 13, 1999, as David Harvey, as Next of Kin and Heir at Law of Iris Harvey, Deceased. Again, this lawsuit was filed by an heir at law, but not by all of the heirs at law.

In Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990), this court in discussing fees sought by attorneys who represented the heirs at law in an action where the wrongful death action had been prosecuted by a personal representative, stated, “[T]he wrongful death code provisions do not create an individual right in any beneficiary to bring suit.” Brewer, 301 Ark. at 362 (citing Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985)).

In Thompson v. Southern Lumber Co., 113 Ark. 380, 168 S.W. 1068 (1914), this court stated, in citing McBride v. Berman, 79 Ark. 62 (1906), “It follows from these decisions as an indispensable prerequisite to the maintenance of a suit under the statute, supra, that the widow and heirs of the person killed by the wrongful act of another shall all be made parties.” In McBride, this court stated, “That in default of a personal representative an action brought under Lord Campbell’s Act must make the widow (if there be one) and the heirs at law parties thereto.” McBride, 79 Ark. at 65. A review of the statutes applicable at the time of these cases shows Kirby’s Digest, 1903, was the current law for Thompson and McBride. Kirby’s Digest, sec. 6290 (1903), in relevant part provides,

Every such action shall be brought by, and in the name of the personal representative of such deceased person, and if there be no personal representative, then the same may be brought by the heirs at law of such deceased person....

The present statute provides in relevant part that if there is no personal representative, “then the action shall be brought by the heirs at law of the deceased person.” Ark. Code Ann. § 16-62-102(b). The language is quite similar.

In determining the meaning of a statute, this court will construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. If the language of a statute is clear and unambiguous, and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000). The statute states the action “shall be brought by the heirs at law of the deceased person.” In the original act, the language was “may be brought by the heirs at law....” Mansfield’s Digest, sec. 5226. Act 255 of 1957 first used “shall be brought by the heirs at law....” Ark.’ Stat. Ann. § 27-907 (Repl. 1962). This change in the language is from “may” to “shall.” The word “shall” is now considered mandatory in spite of earlier cases that indicated otherwise. Earlier this court stated;

[ T] hough ordinarily the word “shall” is mandatory, and the word “may” is directory, they are often used interchangeably in legislation. Arkansas State Highway Comm’n v. Mabry, 229 Ark. 261, 315 S.W.2d 900 (1958). In Mabry, this court recognized that to carry out the legislature’s intent, the word “shall” may, in certain circumstances, be construed as the equivalent of the word “may.” This court concluded that if the language of the statute, considered as a whole and with due regard to its nature and object, reveals that the legislature intended the word “shall” to be directory, it should be given that meaning.
* * *
Since Mabry, this court has consistently held that the use of the word “shall” in a statute means that the legislature intended mandatory compliance with the statute unless such an interpretation would lead to an absurdity. See Hattison v. State, 324 Ark. 317, 920 S.W.2d 849 (1996); Klinger v. City of Fayetteville, 293 Ark. 128, 732 S.W.2d 859 (1987); Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986).

Fulmer v. State, 337 Ark. 177, S.W.2d 700 (1999).

David relies on Murrell v. Springdale Mem. Hosp., 330 Ark. 121, 952 S.W.2d 153 (1997), for the proposition that an individual heir at law can bring suit for wrongful death when there are other heirs at law. In Murrell, the widower filed suit as the surviving spouse and subsequently took a voluntary non-suit. There were also three surviving children. The widower refiled the lawsuit as the personal representative of the estate and as the surviving spouse. The widower died and the couple’s son was appointed successor administrator. We held that the widower’s action for wrongful death of his wife did not survive his death, and that the children’s claim was barred by the statute of limitation because they were not parties to the first action. This court’s statement in Murrell that “Melvin Dale Murrell’s initial complaint, filed prior to the opening of Bonnie Marie Murrell’s estate was appropriately brought according to Ark. Code Ann. § 16-62-102(b) (1987)” is merely dicta and was not the holding in the case. This statement was an incorrect statement of the law

The language of Ark. Code Ann. § 16-62-102(b) is clear and unambiguous. If there is no personal representative of the deceased person, then the action shall be brought by all the heirs at law of the deceased. In this case, there were three heirs at law: David, the widower, and the two children. See Ark. Code Ann. § 16-62-102(d). The Wrongful Death Statute, Ark. Code Ann. § 16-62-102(b), requires the action be brought by all of the heirs at law. David has no standing to bring this action.

We grant the Writ of Prohibition.


text:
    Josh VANESCH v. STATE of Arkansas
    CR 00-664
    37 S.W.3d 196
    Supreme Court of Arkansas
    Opinion delivered January 18, 2001

      Charles M. Kester, for appellant.

      Mark Pryor, Att’y Gen., by; David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   JIM HANNAH, Justice.

This case is here on a petition for review filed by the State of Arkansas from a decision entered by the Arkansas Court of Appeals. Although the court of appeals upheld Appellant Joshua Lee Vanesch’s convictions for several drug crimes entered after a bench trial in the Van Burén County Circuit Court, the State petitioned for review because the court of appeals determined that a juvenile-delinquency adjudication cannot be used for sentence enhancement under the habitual-offender law. In response, Vanesch requests that this court review the court of appeals decision upholding the trial court’s decision to admit into evidence Vanesch’s juvenile-delinquency adjudication, and to review the court of appeals’ finding that such admission did not seriously prejudice Vanesch.

Facts

In the early morning hours of January 19, 1998, Van Burén County Sheriff Deputies Scott Handford and Randy Murray stopped Vanesch as he was driving down Highway 65. According to Officer Handford’s testimony, Vanesch’s vehicle was having electrical problems that caused the headlights to flash. Upon approaching Vanesch and questioning him, Officer Handford smelled marijuana emanating from the car, and Vanesch confirmed that he had smoked a marijuana cigarette earlier that evening. The officers obtained permission to search the car, and upon searching found a black bag containing marijuana, methamphetamine, and drug paraphernalia. The officers arrested Vanesch immediately. On January 21, 1998, the Van Burén County prosecuting attorney filed a felony information charging Vanesch with three counts, including possession with intent to deliver methamphetamine (a class Y felony), possession of drug paraphernalia (a class C felony), and possession with intent to deliver marijuana (a class C felony).

After a series of pretrial hearings dealing with various motions and case matters, the bench trial before the trial judge took place on February 26, 1999. During trial, the felony information was amended to reflect that Vanesch also was being charged as an habitual offender pursuant to Ark. Code Ann. § 5-4-501 (a)(1) (Repl. 1997) for having committed more than one but less than four felonies. The prosecutor based this amendment on a felony charge of theft by receiving to which Vanesch pled guilty on January 30, 1998, eight days after he was arrested for these drug crimes, and a prior juvenile-delinquency adjudication for another possession drug crime. At trial, the prosecutor also submitted Vanesch’s juvenile record as a basis for charging him as an habitual offender. These records form the basis for Vanesch’s appeal. During trial, the prosecutor, who had only that day given Vanesch’s attorney these records, argued to the court that the records could be used for the habitual-offender charge. The following discussion transpired:

Mr. FUCHS: Your Honor, those were sprung on me today, and I’m — I’m not sure of the law on the juvenile records, so I’m gonna object. I’m sure you know, but I don’t know. I didn’t have any time to research this. He just gave it to me when I walked in the door to try this case.
Mr. JAMES: Your Honor, the State submits that the defendant knows of his own criminal record and, uh, that the juvenile offense is a felony offense and is, therefore, available for enhancement purposes for habitual offender. The information was filed prior to the beginning of trial, and I believe the State has a right to amend at any time prior to the —
Mr. FUCHS: Well, I’m not objecting to his amendment. I’m just telling the Court that, five minutes before this trial, I get an amendment and I get these judgments, and —■ and I — I could not look up anything. I did not have the time.
The Court: Is there — I don’t understand. Is there some objection —
Mr. Fuchs: Uh, well, I —
The Court: to the question?
Mr. FUCHS: — I’m gonna have to object, because I’m ignorant. I’m objecting that I don’t believe you can use the juvenile record against him for a habitual-offender status in this case.
The Court: Overruled.

The prosecutor continued his cross-examination, and Mr. Fuchs then stated, “I don’t see the relevance of this — .” No ruling was made by the trial court on this alleged “objection.” The prosecutor continued to submit documents detailing the juvenile proceeding, stating, “— these three documents — we ask that they be admitted as, uh, certified copies of a — what amounts to a felony conviction in juvenile court of delivery of controlled substance.” In response, Mr. Fuchs stated, “Although I don’t think the actual court order says whether or not it’s a felony or a misdemeanor, in the juvenile court proceedings.” Following Vanesch’s testimony, the parties rested, and the court issued its order finding Vanesch guilty of all three counts.

The trial then moved on to sentencing, and the court heard arguments from the parties. The State asked the court to consider Vanesch’s felony record, stating, “Your Honor, we’ve already introduced, uh, his felony record, so we would ask the Court to consider that in sentencing, as well — as well.” In argument on sentencing, the prosecutor made no specific mention of the juvenile records. Defense Counsel Fuchs made no statement regarding whether the use of the juvenile records was proper in sentencing. The court then sentenced Vanesch to six years on the possession-of-drug-paraphernalia charge, ten years for the possession-of-marijuana-with-intent-to-deliver charge, and twelve years for the possession-of-methamphetamine-with-intent-to-deliver charge, to be served concurrently. The Judgment and Commitment Order reflects that Vanesch was sentenced as a habitual offender under Ark. Code Ann. § 5-4-501.

Vanesch filed his Notice of Appeal on March 22, 1999. In his appeal brief to the court of appeals, Vanesch made three arguments. First, he argued that the trial court erred when it admitted evidence of his juvenile record because that evidence was irrelevant and improper impeachment evidence under Rules 402, 404(b), 608, and 609 of the Arkansas Rules of Evidence. Second, he argued that the trial court erred when it considered his juvenile record as a “conviction” for purposes of sentence enhancement under the habitual-offender statute. Third, Vanesch argued that the admission of this evidence at both the guilt and sentencing phases of trial seriously prejudiced him. The State responded, arguing first that Vanesch’s arguments were not preserved for appellate review because defense counsel failed to properly object to the evidence or get a ruling on the alleged “relevancy” objection. Second, the State argued that Vanesch’s juvenile record could be used for sentence enhancement under the habitual-offender statute. Third, the State argued that Vanesch did not demonstrate that he was prejudiced by the admission of the juvenile records.

The court of appeals issued its unanimous decision on May 17, 2000, affirming the trial court’s order of conviction and sentencing. However, despite this decision, the court of appeals found that the trial court erred “in admitting appellant’s juvenile adjudication in the sentencing phase of trial for the purpose of sentence enhancement under the habitual-offender law.” The court based its decision on the premise that “a juvenile adjudication is not a felony conviction” and cannot be used for sentence enhancement. Despite this alleged error, however, the court of appeals found that Vanesch did not show that he was prejudiced by the error because he could not prove that his sentence was enhanced by the circuit court where the sentence given did not exceed the maximum nonhabitual sentences.

Following the court of appeals’ decision, the State petitioned this court for review arguing that the court of appeals incorrectly found that the trial court erred in admitting Vanesch’s juvenile record in the sentencing phase of trial. In other words, although the State prevailed, it now requests an additional finding that juvenile records can be used for sentence enhancement in felony cases. Vanesch has requested this court to review the court of appeals decision that upheld the trial court’s decision to admit into evidence Vanesch’s juvenile-delinquency adjudication and that such admission did not seriously prejudice Vanesch.

Standard of Review

On a petition for review, this court reviews the case as if the appeal had originally been filed in this court. Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999); State v. Brunson, 327 Ark. 567, 570, 940 S.W.2d 440 (1997); Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997). On appeal, we will not reverse a trial court’s ruling on the admission of evidence absent an abuse of discretion; nor will we reverse absent a showing of prejudice. Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999); Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996).

Preservation of Issues for Appeal

Vanesch argues that the trial court erred when it admitted evidence of Vanesch’s serial, juvenile-delinquency adjudication during the guilt phase of the trial because it was irrelevant and improper impeachment evidence under Rules 402, 404(b), 608, and 609 of the Arkansas Rules of Evidence. We are unable to consider this argument because this court will not consider an argument raised for the first time on appeal.

The only objection made by Attorney Fuchs was that he did not believe that the records could be introduced to trigger the habitual-offender statutes in this case. Vanesch argues that his attorney objected to the relevancy of the evidence, which then would trigger analysis under Rules 402, 404(b), 608, and 609 of the Arkansas Rules of Evidence; however, a close look at the record indicates that defense counsel merely stated that he “did not see the relevance” of the records, but he never received a ruling on his “relevancy objection,” if it can even be called that. While it is true that objections need not cite specific rules to be sufficient, this court has made clear that a specific objection is necessary in order to preserve an issue on appeal. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000); Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998). To preserve an argument for appeal, there must be an objection in the trial court that is sufficient to apprise the court of the particular error alleged, and the appellate court will not address arguments raised for the first time on appeal. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). A party cannot change the grounds for an objection or motion on appeal but is bound by the scope and nature of the arguments made at trial. Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997).

While it is clear that defense counsel did object and got a ruling on the objection regarding the use of juvenile records for the habitual-offender charge, his relevancy “objection” was not proper. Furthermore, he did not get a ruling on it and, therefore, this court cannot reach the issue of the relevancy of the records in this case. The burden of obtaining a ruling is upon the movant, and unresolved questions and objections are waived and may not be relied upon on appeal. Aaron v. State, 319 Ark. 320, 891 S.W.2d 364 (1995).

Use of Juvenile-Delinquency Record for Sentence Enhancement under the Habitual-Offender Statute

The State argues that the court of appeals erred when it determined that a juvenile-delinquency adjudication cannot be used for sentence enhancement under the habitual-offender law.

This court in Snyder v. State, 332 Ark. 279, 965 S.W.2d 121 (1998), held that Ark. Code Ann. § 16-97-103 (Supp. 1997) allows the introduction into evidence of prior juvenile-delinquency adjudication records if they survive an Arkansas Rule of Evidence 403 challenge. No such objection was made by the defense counsel during the guilt phase of the trial in this case.

However, that the prior juvenile-delinquency adjudication records are admissible at trial does not completely answer the question raised by the parties regarding the use of the prior juvenile-delinquency adjudication for habitual-offender status. The relevant “habitual offenders” statutes are found at Ark. Code Ann. § 5-4-501 - 5-4-504 (Repl. 1997). In those statutes, the Arkansas General Assembly specifically requires “a previous conviction or finding of guilt” before the habitual offender provisions are triggered. Ark. Code Ann. § 5-4-504(a) “Habitual offenders Proof of previous conviction” states in part:

(a) A previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was convicted or found guilty.

This court has held that a finding of juvenile delinquency is not considered a “conviction.” See Snyder v. State, supra; Munhall v. State, 337 Ark. 41, 986 S.W.2d 863 (1999); Rogers v. State, 260 Ark 232, 538 S.W.2d 330 (1976). Also the court of appeals pointed out in its opinion, as has this court, that the General Assembly has recognized that a juvenile-delinquency adjudication is different from a conviction. See, e.g., Ark. Code Ann. § 16-97-104 (Supp. 1997) (“Proof of prior convictions, both felony and misdemeanor, and proof of juvenile adjudications shall follow the procedures outlined in §§ 5-4-501 - 5-4-504.”); Ark. Code Ann. § 5-73-130(a) (Repl. 1997) (“Whenever a person under eighteen (18) years of age is unlawfully in possession of a firearm, the firearm shall be seized and, after an adjudication of delinquency or a conviction, shall be subject to forfeiture.”); Snyder, supra. Furthermore, it appears that the General Assembly also recognizes a difference between an adjudication or finding of guilt and an adjudication of delinquency. See, e.g., Ark. Code Ann. § 12-12-1109(a) and (b) (1997), (“A person who is adjudicated guilty or adjudicated delinquent for a sex offense, a violent offense, or a repeat offense on or after August 1, 1997, shall have a deoxyribonucleic acid (DNA) sample drawn....”); see also, Ark. Code Ann. § 9-27-309(c) (Repl. 1998) (“Records of juveniles who are designated as extended juvenile jurisdiction offenders shall be kept for ten (10) years after the last adjudication of delinquency, date of plea of guilty or nolo contendere, or finding of guilt as an adult or until the juvenile’s twenty-first birthday, whichever is longer.”) Such a finding would comport with the purpose of the juvenile code, which is, in part, to rehabilitate instead of punish young offenders. See Ark. Code Ann. § 9-27-302(3) (Supp. 1999). This Court has reiterated that

[[juvenile offenders are not adult offenders and are not treated as such.. . . [T]he entire process and the purpose of the juvenile code set it apart from the criminal code and many of the considerations involved in dealing with juvenile offenders are significantly different.

L.H. v. State, 333 Ark. 613, 973 S.W.2d 477 (1998) (citing Robinson v. Shock, Supt., 282 Ark. 262, 265, 667 S.W.2d 956, 958 (1984)).

A juvenile-delinquency adjudication is not a conviction of a felony, and it is not a finding of guilt of a felony. A prior juvenile-delinquency adjudication cannot be used for sentence enhancement under the habitual-offender law. We hold that the trial court erred in admitting Vanesch’s prior juvenile-delinquency adjudication for the purpose of sentence enhancement under the habitual-offender law.

Prejudice

Vanesch was prejudiced by the trial court’s admitting the prior juvenile-delinquency adjudication in the sentencing phase of the trial to trigger the habitual-offender law.

For the habitual-offender statute to be applicable, Vanesch had to have been previously found guilty of more than one (1) but less than four (4) felonies. Ark. Code Ann. § 5-4-501. In this case, Vanesch had only one prior felony conviction. Thus, the habitual-offender law was not applicable. In the Judgment and Commitment Order signed by the trial judge, it indicates that the trial judge departed from the sentencing grid and sentenced Vanesch as a habitual offender on all three felony convictions.

The trial judge’s sentences did not exceed the maximum nonhabitual sentences. However, probation is available for the Class C felonies, possession of drug paraphernalia and possession with intent to deliver marijuana and for the Class Y felony, possession with intent to deliver methamphetamine. See Ark. Code Ann. § § 5-4-104 (Repl. 1997) and 5-64-401 (Repl. 1997), and § 5-4-301. See Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000). Originally such was not the case for Class Y felony. See State v. Knight, 318 Ark. 158, 884 S.W.2d 258 (1994). However, with the passage of Act 192 of 1993, codified at Ark. Code Ann. § 5-4-104, this prohibition has changed. Now, probation is allowed for such crimes. See Stinnett v. State, 63 Ark. App. 72, 973 S.W.2d 826 (1998) and Buckley, supra. The decision to allow alternative sentencing is reviewed for an abuse of discretion. Ark. Code Ann. § 16-97-101; Buckley, supra.

In Rogers v. State, 260 Ark. 232, 538 S.W.2d 300 (1976), this court reduced the sentence to the minimum permissible term because the court could not ascertain beyond speculative persuasion what role the inadmissible conviction played in enhancing appellant’s sentence. In this case, we know that the trial judge in sentencing Vanesch departed from the sentencing grid and sentenced Vanesch as a habitual offender on all three felony counts. We can only speculate what impact the inadmissable prior juvenile-delinquency adjudication played in enhancing Vanesch’s sentences. Vanesch was prejudiced by the trial courts admitting the prior juvenile-delinquency adjudication in the sentencing phase of the trial to trigger the habitual-offender law. This case should be sent back to the trial court for resentencing.

Affirmed in part and reversed and remanded in part for resentencing.


author: PER CURIAM.

text:
    Walter McCULLOUGH v. Larry NORRIS, Director, Arkansas Department of Correction
    00-732
    37 S.W.3d 575
    Supreme Court of Arkansas
    Opinion delivered January 18, 2001

      Appellant, pro se.
    No response.
   PER CURIAM.

Walter McCullough has lodged an appeal in this court from an order of the Circuit Court of Jefferson County denying a petition for declaratory judgment in a civil matter. Appellant McCullough filed the appellant’s brief-in-chief in a timely manner but tendered only one copy of his reply brief eleven days after it was due for filing. (This court requires tender of seventeen copies of a brief.) Twelve days after the copy of the reply brief was returned, appellant McCullough filed the instant motion for leave to file a belated reply brief.

The motion is denied. Appellant places the fault for the untimely tender of the reply brief on the Arkansas Department of Correction, but he does not explain why he failed to seek an extension of time before the brief was due if he was aware that it could not be filed in a timely manner. Moreover, appellant does not contend that there is any specific issue to be addressed in the reply brief if it were accepted late.

Motion denied.


author:
Wh. “Dub” Arnold, Chief Justice.
      RAY THORNTON, Justice,

text:
    Anita June CHAMBERLIN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    99-191
    36 S.W.3d 281
    Supreme Court of Arkansas
    Opinion delivered January 25, 2001
    [Petition for rehearing denied March 1, 2001. ]

      Duncan & Rainwater, P.A., by: Neil Chamberlin and J. Stephen Holt, for appellant.

      Laser, Wilson, Bufford & Watts, P.A., by: Kevin Staten and Brian A. Brown, for appellee.

       GLAZE and Imber, JJ., not participating.

   Wh. “Dub” Arnold, Chief Justice.

Appellant, Anita June Chamberlin, urges us to overrule precedent, particularly our holding in Clampit v. State Farm Mut. Auto. Ins. Co., 309 Ark. 107, 828 S.W.2d 593 (1992), that upheld an insurance policy’s underinsured-motorist-coverage exclusion as not violative of state public policy or the uninsured-motorist statute where the owned-but-not-insured exclusion was clear and unambiguous. We granted appellant’s motion to certify the appeal to this court, and our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. l-2(d) and l-2(b)(2), (4), (5), and (6) (2000). Specifically, Chamberlin asks that we (1) disregard unambiguous anti-stacking clauses in three motor-vehicle insurance policies sold to her husband by appellee State Farm Automobile Insurance Company, and (2) permit her to “stack” the underinsured coverage under those policies for which three separate underinsured premiums were paid.

Background

The facts are undisputed. Chamberlin was injured in a two-car head-on collision. At the time of the accident, appellant was a passenger in her husband’s car, a 1988 Chrysler New Yorker insured by appellee. Appellant and her husband sued the driver at fault for negligence. Ultimately, the matter was settled because the driver’s insurance company paid the insured’s liability-coverage limits. Chamberlin then sought reimbursement from State Farm. Mr. Chamberlin had purchased three separate insurance policies from State Farm for three vehicles owned by the Chamberlin’s at the time of the accident. Each policy included underinsured-motorist coverage. However, each policy contained an anti-stacking clause stating:

THERE IS NO COVERAGE:
1. For Bodily Injury to an Insured:
a: While occupying a motor vehicle owned by you, your spouse or any relative if it is not insured for this coverage under this policy; or
b. Through being struck by a motor vehicle owned by you, your spouse or any relative.

(Emphasis added.)

State Farm paid Chamberlin the limits of underinsured coverage under the policy issued on the 1988 Chrysler but denied her claims for payment under the remaining policies on the two cars insured by State Farm but not occupied at the time of the accident. State Farm refused to pay on the owned-but-not-insured cars because it claimed that the policy exclusion clearly prohibited stacking. Notably, appellant concedes on appeal that the exclusionary language in the policy is unambiguous.

Chamberlin filed suit in the Pulaski County Circuit Court seeking to be made whole, in part, to the extent that State Farm would be required to pay her the limits of underinsured coverage under the other two policies. State Farm moved for summary judgment. In light of Arkansas case law holding that an insurance carrier may prohibit the stacking of medical-payment coverages under multiple insurance policies, consistent with the language of the no-fault act, and the fact that State Farm’s exclusion was clear and unambiguous, the trial court granted appellee’s motion for summary judgment. The instant appeal ensued.

Appellant argues that the trial court’s order granting summary judgment should be reversed because our holding in Ross v. United Servs. Auto Ass’n., 320 Ark. 604, 899 S.W.2d 53 (1995), may be extended to permit stacking of underinsured-motorist coverage in the case at bar. Appellant also asks us to overturn our decision in Clampit, which would otherwise prohibit stacking. After considering appellant’s arguments and the applicable controlling authority, we decline to reverse the trial court.

I. Standard of review

Appellant’s sole point on appeal challenges the trial court’s order granting State Farm summary judgment. In reviewing summary-judgment cases, we need only decide if the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party, State Farm, left a material question of fact unanswered. Notably, the moving party always bears the burden of sustaining a motion for summary judgment. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. However, the moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56 (2000); Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners, 332 Ark. 450, 453, 966 S.W.2d 241, 243 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)).

Once the moving party makes a prima facie showing that it is, entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Dillard v. Resolution Trust Corp., 308 Ark. 357, 359, 824 S.W.2d 387, 388 (1992). If a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence. Collyard v. American Home Ins. Co., 271 Ark. 228, 230, 607 S.W.2d 666, 668 (1980). Here, the parties agree that there are no disputed facts. Accordingly, our review must focus on the trial court’s application of the law to those undisputed facts.

II. Stacking of underinsured-motorist coverage

Turning our attention to the applicable law, we first acknowledge appellant’s concession that she cannot recover underinsuredmotorist coverage from State Farm on the two owned-but-not-insured vehicles under our current case law. Significantly, we considered the precise issue raised here in Clampit v. State Farm Mutual Auto. Ins. Co., 309 Ark. 107, 828 S.W.2d 593 (1992). Of course, in Clampit, we rejected the same arguments now advanced by appellant. Nevertheless, appellant disagrees with the trial court’s reliance on our case law and urges us to abandon our position in Clampit.

Appellant also invites us to extend our holding in Ross, a recent case where we allowed stacking of underinsured coverages. Flowever, we permitted the stacking under specific facts unique to Ross. In Ross, coverage was imposed by operation of law because the insurance company failed to comply with a legislative mandate requiring that, underinsured-mqtorist coverage be offered and, if declined, rejected in writing. Ross, 320 Ark. at 609-10, 899 S.W.2d at 56 (quoting 3 Alan Widiss, Uninsured and Underinsured Motorist Insurance § 32.7 (2d 1992)). Unlike the instant case, the insurance-policy language at issue in Ross prohibited the stacking of policies but not the stacking of cars within a single policy. Ross, 320 Ark. at 610, 899 S.W.2d at 56. Ross is distinguishable. Accordingly, we decline to extend its holding to the facts presented in this appeal.

In any event, Chamberlin contends that our holding in Clampit reflects a minority-jurisdiction position. In response, State Farm insists that our case law is controlling precedent and that the instant facts, including an unambiguous insurance-policy exclusion, do not warrant a break from such precedent. We agree. Under the doctrine of stare decisis, we are bound to follow prior case law. The policy of stare decisis is designed to lend predictability and stability to the law. State of Arkansas Office of Child Support Enforcement v. Mitchell, 330 Ark. 338, 343, 954 S.W.2d 907, 909 (1997) (citing Parish v. Pitts, 244 Ark. 1239, 1252, 429 S.W.2d 45, 52 (1968) (superseded by statute on other grounds)). It is well-settled that “[precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable.” Mitchell, 330 Ark. at 343, 954 S.W.2d at 909 (quoting Parish, 244 Ark. at 1252). Our test is whether adherence to the rule would result in “great injury or injustice.” Mitchell, 330 Ark. at 343, 954 S.W.2d at 909 (quoting Independence Fed. Bank v. Webber, 302 Ark. 324, 331, 789 S.W.2d 725, 730 (1990)). We find that the case at bar does not warrant a break from precedent.

Moreover, contrary to appellant’s assertion, Arkansas public policy does not favor stacking. In Clampit, we explained the public-policy rationale supporting our decision. For example, if an insurer is required to insure against a risk of an undesignated but owned vehicle, it is required to insure against risks that it is unaware of and unable to charge a premium for. Clampit, 309 Ark. at 109, 828 S.W.2d at 594-95. Of course, if more coverage is desired, an insured remains free to supplement coverage in an existing policy by paying additional premiums calculated to insure against the increasing covered risks.

Given that the rights at issue are governed by statute and not common law, we also heed legislative intent. Compare Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997) (explaining that the field of common law is not primarily the legislature’s province but the court’s and that the court is free to amend the common law and not bound to adhere to outmoded holdings pending legislative action). Although aware of our judicial decisions, including Clampit, the legislature has not amended the governing statutes to permit stacking. In fact, as appellee notes, the General Assembly’s silence over “a long period gives rise to an arguable inference of acquiescence or passive approval” to the court’s construction of the statute. Chapman v. Alexander, 307 Ark. 87, 90, 817 S.W.2d 425, 427 (1991).

Appellant’s reliance on authority from other jurisdictions is equally unpersuasive. Not only is the cited case law not controlling on this court but, in many cases, it is clearly distinguishable. Other states’ decisions turned upon specific language in the state’s statute authorizing stacking or an expressed legislative intent favoring stacking. In any event, we addressed the issue of foreign authority directly in Clampit and commented that “sheer numbers of decisions of other jurisdictions one way or the other on any given question are of course not controlling on this Court.” Clampit, 309 Ark. at 111, 828 S.W.2d at 595-96.

Here, State Farm priced its premiums based on single-car coverage, and appellant’s policy was limited by an accepted, clear exclusion. Consequently, State Farm asserts that its unambiguous policy should not be construed to provide coverage for a plainly-excluded risk, for which no premium was paid. See, e.g., Baskette v. Union Life Ins. Co., 9 Ark. App. 34, 652 S.W.2d 635 (1983). Indeed, we have held that parties are free to contract on terms, and so long as the policy language is clear and not violative of the state law, we shall enforce the agreement as written. See Pardon v. Southern Farm Bureau Casualty Ins. Co., 315 Ark. 537, 868 S.W.2d 468 (1994).

In Youngman v. State Farm Mut. Auto. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998), we discussed a simple rule for analyzing almost any stacking problem: “Read the Statute and Read the Policy!” Youngman, 334 Ark. at 79, 971 S.W.2d at 251 (citing State Farm Mut. Auto. Ins. Co. v. Beavers, 321 Ark. 292, 901 S.W.2d 13 (1995) (quoting Douglass and Telegadis, Stacking of Uninsured and Underinsured Motor Vehicle Coverages, 24 U. Rich. L. Rev. 87 (Fall 1989)). Applying the same principle here, we cannot say that the trial court erred by concluding that State Farm’s unambiguous owned-but-not-insured exclusion was valid.

Based upon the controlling authority of Clampit, the inapplicability of Ross, and the absence of any legislative intent enabling stacking, there are no grounds justifying reversal of the trial court’s grant of summary judgment. Further, we conclude that the instant facts do not yield a result so patently wrong and so manifesdy unjust that a departure from our precedent is unavoidable. Viewing the evidence in the light most favorable to Chamberlin, resolving any doubts against State Farm, and acknowledging that there remain no genuine issues of material fact, we hold that the trial court did not err in finding that appellee was entitled to a judgment as a matter of law.

Affirmed.

Special Justices Keith Wood and G. William Lavender, join.

Glaze and Imber, JJ., not participating.

Corbin, Thornton, and Hannah, JJ., dissent.

RAY THORNTON, Justice,

dissenting. This case presents us with an opportunity to extend our decision in Ross v. United Servs. Auto Ass’n., 320 Ark. 604, 899 S.W.2d 53 (1995), where we held that underinsured motorist coverage could be stacked to allow full recovery of injuries sustained by a policy holder in circumstances where the insurance company failed to comply with a legislative mandate requiring that such coverage be offered. The majority declined to extend Ross, supra, and I respectfully dissent.

In 1992, the court decided Clampit v. State Farm Mut. Auto. Ins. Co., 309 Ark. 107, 828 S.W.2d 593 (1992), by a 4-3 majority, holding that public policy does not require that uninsured motorist coverage must be paid by an insurance company even when another policy provides such coverage. After we decided Ross, supra, extending underinsured coverage to an insured when the insurance company failed to comply with applicable statutes, we revisited the issue once again in Youngman v. State Farm Mut. Auto. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998), and decided that the anti-stacking provisions of the insurance policy were enforceable. Justice Corbin noted in a strong and well-reasoned dissent:

[ W]hen an insured purchases such coverage, he or she pays an added premium for such coverage. According to this court’s decisions enforcing other-insurance clauses, however, he or she may be entitled to recover under such added coverage only in certain circumstances. In other words, the added premium is consistently being paid, but the coverage is less than consistently being provided. Should the insurers continue to benefit from receiving premium payments from their respective clients, only to deny payment of coverage to the clients where another insurer has already paid? It seems to me that, while we have gone out of our way to avoid giving a windfall to the insured, we have inadvertently provided a windfall to the insurers, by allowing them to benefit from the payment of additional premiums for uninsured-motorist coverage. Such windfall was never intended by the Uninsured Motorist Act (citation omitted).

Id. Justice Corbin also wrote that “the overwhelming majority of states now embrace the notion that an injured insured should be entitled to collect on multiple uninsured-motorist policies in order to fully compensate or indemnify the insured. Id. (citing Alan I Widiss, Uninsured and Underinsured Motorist Insurance § 13.6 (1990).

I agree with Justice Corbin’s dissent in Youngman, supra, on the issue of stacking as a matter of public policy and quote further from that dissent:

[ A]nti-stacking (or other-insurance) clauses pertaining to underinsured-motorist coverage deny Arkansas policyholders their reasonable expectations of full compensation, and that such clauses accordingly violate public policy. I further believed that such clauses pertaining to uninsured-motorist coverage are equally violative of public policy, as they, too, deny policyholders their expectations of being fully compensated in the event they are injured by the actions of an uninsured motorist. I do not believe, however, that recovery under more than one policy should actually enrich or benefit an insured beyond his or her injuries.

Id. (emphasis added).

In 12A George J. Couch, Cyclopedia of Insurance Law § 45:628 (2d rev. ed. 1981 & Supp. 1997), the author writes, “the injured party may draw in order to compensate him for his actual loss where a single policy is not sufficient to make him whole.” Id. In this case, appellant requests that she be made whole. Even the majority in Clampit, supra, concedes that the “[underinsuredmotorist] coverage is designed to provide compensation to the extent of the injury, subject to the policy limit.” Id. Stacking would enable appellant in this case to receive compensation for almost the entire extent of her injury.

In Youngman, supra, the majority recognizes that thirty-six states have allowed stacking of insurance coverage policies that have been actually purchased and paid by the insured. I believe it is time we joined the majority view and respectfully dissent. However, by the majority’s decision today to allow prohibitions against stacking to be enforced, those adversely affected by the anti-stacking rule must look to the legislature for guidance on the underlying issue of public policy. Otherwise principles of stare decisis will preclude us from examining this issue again.

I respectfully dissent, and I am authorized to state that Justice CORBIN and Justice HANNAH join in this dissent.

Corbin and Hannah, JJ., join.


author: W.H. “Dub” ARNOLD, Chief Justice. TOM Glaze, Justice,

text:
    Mary M. KNIGHT, Individual; and Knight Counseling, Inc. v. William DAY, an Individual
    00-731
    36 S.W.3d 300
    Supreme Court of Arkansas
    Opinion delivered January 25, 2001

      Harrington, Miller, Neihouse & Krug, P.A., by: Wayne Krug, for appellant.

      Law Offices of John R. VanWinkle, by: John VanWinkle, for appellee.
   W.H. “Dub” ARNOLD, Chief Justice.

The issue in this appeal is whether the appellee committee constructive fraud by allegedly engaging in the unauthorized practice of law. The trial court found no fraud. We agree with the trial court and hereby affirm.

The facts of the case are as follows. Appellants had hired appellee William Day to perform accounting services. Appellant Mary Knight, a licensed clinical social worker (L.C.S.W.), had started her own business entitled Knight Counseling, Inc. Ms. Knight was in the process of obtaining a contract with the State and needed to obtain a legal business entity for her practice. Ms. Knight had hired a tax attorney who established her company as a professional limited liability company (PLLC), but she later discovered that it was not going to be valid.

In late 1994, Ms. Knight consulted with appellee William Day upon another person’s recommendation. Mr. Day holds no professional licenses or certificates; he acts as a tax practitioner. Ms. Knight testified that Mr. Day told her they needed to dissolve the PLLC and set up a Sub S Corporation. Ms. Knight testified that Mr. Day told her he had such experience and that he would be able to draft all the necessary documents. However, at their initial meeting, Mr. Day referred Ms. Knight to Mr. George Oleson and Mr. J.D. Moon, both attorneys. He later completed the necessary paperwork and dissolved the PLLC; Ms. Knight subsequently received a Certificate of Dissolution for the PLLC.

After the creation of the Sub S Corporation, Ms. Knight brought in another person, Brenda Baker, a licensed social worker (L.S.W), to work with her. Ms. Knight then discussed Ms. Baker’s addition to the practice in terms of how to treat her for payroll purposes. Ms. Knight testified that she discussed with Mr. Day the fact that Ms. Baker could not be an owner or partner in the business, due to the State’s regulations, and that if such occurred, Knight’s license could be in jeopardy.

Ms. Knight testified that Mr. Day told her if Ms. Baker was a shareholder in the company, she would not be perceived as an owner and that she could be treated the same as Ms. Knight for tax purposes. Ms. Baker was so treated; and, in 1995, Mr. Day prepared Ms. Knight’s personal and corporate tax returns for 1994. Later, in January or February of 1997, Mr. Day told Ms. Knight that he wanted to lighten his client base for personal reasons and referred her to Dan Downing, another accountant.

After meeting with Mr. Downing, he told Ms. Knight, after reviewing her tax documents, that they had not been prepared accurately and that she needed to have them amended to remove Ms. Baker as a shareholder. Mr. Downing did not make all of the suggested changes; Ms. Knight later hired Jack Bottoms, who filed amended tax returns and amended 941 forms on her behalf. Ms. Knight then filed a cause of action against William Day alleging accounting malpractice and illegal practice of law without a license.

Following a one-day trial on January 5, 2000, the trial court stated its failure to find that fraud or misrepresentation of fact had occurred; the court found that Ms. Knight failed on her complaint for accounting malpractice and also failed on her complaint for fraud and misrepresentation. The trial court issued its order on January 5, 2000 (filed on February 22, 2000) dismissing with prejudice both counts of accounting malpractice and fraud. It is from that order that the instant appeal is taken. Appellants assert as the only point on appeal that the trial court erred in finding that appellee had not committed constructive fraud by engaging in the unauthorized practice of law.

The standard of review on appeal for bench trials is whether the trial judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. See Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 361, 974 S.W.2d 464, 467 (1998). This Court reviews the evidence in the light most favorable to the appellee, resolving all inferences in favor of the appellee. Id. Disputed facts and determinations of credibility of witnesses are within the province of the factfinder. Id.

Here, appellants assert that appellee committed constructive fraud. To establish fraud, a plaintiff must show: (1) a false representation of material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in refiance upon the representation; (4) justifiable rebanee on the representation; and (5) damage suffered as a result of the rebanee. Scollard v. Scollard, 329 Ark. 83, 947 S.W.2d 345 (1997); see also Farm Bureau Policy Holders & Members v. Farm Bureau Mut. Ins. Co. of Ark., Inc., 335 Ark. 285, 984 S.W.2d 6 (1998). Constructive fraud can exist in cases of rescission of contracts or deeds and breaches of fiduciary duties, but certainly a plaintiff must show a material misrepresentation of fact. Id.

Constructive fraud is defined as a breach of a legal or equitable duty which, irrespective of the moral guilt of the fraud feasor, the law declares fraudulent because of its tendency to deceive others. Neither actual dishonesty nor intent to deceive is an essential element. See RLI Ins. Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991). The charge of fraud must be sustained by clear, strong, and satisfactory proof. Ark. State Hwy. Comm’n v. Clemmons, 244 Ark. 1124, 428 S.W.2d 280 (1968).

Appellants argue that appebee held himself out as having the requisite skill and ability to draft the necessary corporate documents. Appebants state that appebee’s suggestion to have the documents reviewed by an attorney and have his or her name entered as corporate counsel did not come until six months after the corporation was improperly formed. Appellants assert that because the corporation was not properly formed under the Arkansas Professional Corporations Act, Mr. Day’s holding himself out as competent to provide services in corporate consulting constituted the communication of a material misrepresentation “of the fact” and that he should have known that the representation was false.

Appellants allege that appellee intended to induce action in reliance on his representation such that Ms. Knight would employ him for the sum of $600.00. Appellants argue that Ms. Knight and her company suffered damages in that the corporation was improperly structured, including the sums paid to appellee for the improper corporation formation and all sums expended to correct the deficiencies.

Appellants further maintain that appellee committed constructive fraud when he discussed whether Brenda Baker was at a licensure level sufficient to be an officer, director, and shareholder in a professional corporation. Appellants assert that appellee held himself out as one capable of making this legal determination and that he knew or should have known that such a representation was false. Again, appellants allege that appellee intended to cause reliance on that representation and that Ms. Knight justifiably relied on what she thought was professional advice, such that she suffered damages, including considerable accounting fees in amending corporate returns and 941s, and incurred considerable penalties and interest with the late payment of payroll taxes.

Appellants conclude that the fact that appellee provided legal advice to appellants regarding ownership of stock in what should have been a professional corporation, and the fact that he held himself out as capable of properly preparing the corporation and drafting corporate documents, is sufficient improper action to constitute constructive fraud. In fact, appellants claim, there is such a danger to this type of activity, it should be deemed by the Court to be per se constructive fraud. We disagree with the assertions of the appellants.

In this case, appellants have failed to prove even the first element of fraud, that is, a false representation of material fact. Appellee never implied or stated that he was an attorney. Although appellant Mary Knight testified that Mr. Day did not tell her that he had an agreement with Mr. Oleson and Mr. Moon to review all of his documents, Mr. Day testified that he told her that all documents that were prepared from the beginning, including the dissolution, would need to be reviewed by an attorney. As stated above, disputed facts and the credibility of witnesses are squarely within the province of the factfinder, which was in this case the trial court. See Ford Motor Credit Co. v. Ellison, supra. The trial court clearly believed Mr. Day’s testimony, as evidenced by the court’s findings at trial:

He told her he was not a lawyer and she knew that he was not a lawyer. He gave them names of two lawyers to call and she calls one and chooses not to go in, and she sees Mr. Bond and doesn’t have him review all of the papers and see that he has committed fraud. . . . Again, he’s given her all kinds of opportunities to talk to lawyers, and if she chooses not to, I think she’s hard-pressed to come in this court and say, “Judge, he pulled the wool over my eyes and he duped me and I didn’t have any idea that I was getting ready to be taken to the cleaners because of his actions.” And that’s just not the facts the case show.

Additionally, appellee sent appellant Mary Knight a letter, dated June 10, 1995, which stated in part:

Enclosed is the By-laws and other necessary documents. If you have any questions please give me a call. It will be necessary to complete the following.
1. Obtain a corporate seal.
2. Obtain a desired specimen of stock and insert it in front of the documents entitled, “RESOLUTION FOR AUTHORIZATION OF CORPORATE LOAN(S).”
3. Obtain a book of choice to hold these documents.
4. Have these documents reviewed by your attorney and have his name as corporate counsel inserted into the proper location on the form titled, “CONSENT TO ACTION TAKEN IN LIEU OF ORGANIZATION MEETING,” page, consent 1.

(Emphasis added.)

The record in this case clearly demonstrates that Mr. Day was preparing documents that were to be reviewed by an attorney and that appellants needed to discuss all legal ramifications of the corporation with an attorney. Appellee told appellant Mary Knight to have his work reviewed by an attorney, and presented Ms. Knight with the names of attorneys. Accordingly, we hold that the trial court did not clearly err when it found that appeEants faded to prove fraud, constructive or otherwise.

. For the above-stated reasons, we affirm the trial court’s dismissal of appeEants’ complaint for fraud and misrepresentation. However, given that the circumstances of this case involve aEegations of the unauthorized practice of law, we hereby direct the Clerk to forward a copy of this opinion to the Arkansas Supreme Court Committee on the Unauthorized Practice of Law.

Affirmed.

Glaze, J., dissents.

TOM Glaze, Justice,

dissenting. AppeEee William Day’s decision to represent appeEant Mary Knight in structuring her counseling business constituted constructive fraud which caused Knight damages. For these reasons, I dissent from the majority court’s decision.

The pertinent facts are the foEowing: Mary Knight is a licensed certified social worker (L.C.S.W.), which requires a masters degree. She performed her services as Knight Counseling, Inc., a professional limited liability company (PLLC). When Knight became concerned that she might lose her contract with the state unless she had a corporation, Knight hired Day, an accountant, for advice. Knight also was bringing Brenda Baker, a licensed social worker (LSW), into Knight’s business, so she voiced her concern over whether Baker should be made an owner or partner in the business since Baker was not a L.C.S.W. Knight told Day that Baker was a good friend, and she wanted Baker to own 50% of the corporation, and after discussing these matters, Day determined it would be “okay” to make Baker a 50% owner and shareholder of the corporation; he told Knight that he could set up her business that way. Day then proceeded to prepare a dissolution for Knight’s existing PLLC and prepared corporate documents estabhshing the business as a Subchapter S corporation. In doing so, Day prepared the articles of incorporation, consent to action taken in lieu of an organizational meeting, by-laws, and other related documents.

Although Day averred he told Knight that the corporate documents would need to be reviewed by an attorney, he conceded that he did not prepare any documents for an attorney to review. As found by the trial court, while an attorney would need to prepare and file such documents, Day did so instead. Most important, Day admitted that, without speaking to an attorney or researching the issue, he decided Baker’s license legally allowed her to be a shareholder and owner in the new Subchapter S corporation. Day testified as follows:

I made the determination that [Baker’s] license was good enough even though it was not equal to [Knight’s] and I did not talk to a lawyer about it before I made that determination. I knew at the time that I was making the determination that the license was not going to be a problem, that I was dealing with the rules and regulations of the Arkansas Social Worker’s Board and the statutes in Arkansas governing the Arkansas Social Worker’s Board, and that I was dealing with the corporate laws in the State of Arkansas and how all those things meshed together.
One of the reasons for setting [Knight] up as [a] Subchapter S corporation was because she could be paid only a part of her income at a level acceptable to the Internal Revenue Service, as wages, and over and above those wages the company could pay money out as dividends and she would not have to pay FICA, because a sole proprietor pays both ends of FICA and that is 15.3 percent. (Emphasis added.)

Interestingly, Day concluded that he based his decision to include Baker as an owner in the Subchapter S corporation on one of his client’s opinion that Baker’s licensure would allow her to be a part of a corporation. Day further conceded that he did not tell Knight to discuss this issue with an attorney, but instead said, “I had already talked to a counselor, and I had been around corporations, and I had talked to other accountants and I thought it would be okay.” In other words, Day held himself out as having the expertise to make such a decision.

The foregoing evidence reflects that Day not only erroneously informed Knight that it was legally permissible for Baker to be an owner/shareholder of Knight’s newly incorporated Subchapter S counseling business, but Day also prepared and filed the corporate documents to include Baker as an owner/shareholder. As he stated, he did not talk with or send Knight to an attorney regarding this legal issue. In fact, the trial court found that Day made the misrepresentation that Baker’s license posed no problem based solely on calling and speaking to his client, who was a counselor.

After having heard the testimony presented by Knight, the trial court considered and denied Day’s directed-verdict motion to dismiss Knight’s fraud claim. Day claimed no fraud occurred, because Day never represented to Knight that he was an attorney. Knight’s counsel responded with the following argument:

The fraud does not have to be malicious. You can have constructive fraud when the person knew or should have known that they were doing something wrong, and in this case he knew or should have known he was doing something wrong. In fact he testified “I [Day] have had lots of opportunities to do these things and I send them away because attorneys need to do that.”
Well he is right, attorneys do need to do that. But in this case he decided to prepare all of these documents and file the documents.
The second misrepresentation is also the unauthorized practice of law, and . . . more severe is the misrepresentation that the licensure was okay, that the difference between the licensure levels of the parties was okay. Mr. Day made that determination not with the review of the statute, not with review of the regulations of the social work committee, he made that determination by calling a client. (Emphasis added.)

After Knight’s response, the court again denied Day’s directed-verdict motion. Following that ruling, witnesses were then called by Day. Dan Downey, an accountant, testified that he did not find any problems with the work Day prepared, and that if Day prepared Knight’s corporate documents and told her to have an attorney review them, Downing “saw nothing wrong with that.” However, Downey explained further that it was not proper for an accountant to interpret Arkansas law with regard to who could be a shareholder in a corporation — that an attorney’s opinion is required on that issue.

Day next called Baker as a witness, and among other things, Baker said that Day told her it was all right for her to be a shareholder in Knight’s corporation, and also related the following:

I had informed Mr. Day that I could not be an owner. I personally told Mr. Day that I only found out later that Mr. Day had set me up as a shareholder and he did tell me that it was alright [sic] to do it this way. I remember going to Mr. Day’s house, I ran a lot of errands and picked up a lot of papers, and on one occasion, Mr. Day and I talked about it, and I reminded him that I could not be an owner because of my licensure. And he said, why does [Knight] keep telling me, keep bringing this up to me over and over, and I said we both want to be very clear that I cannot be an owner in any way as I had stated in a letter that I turned in a year ago. He said, well as a shareholder, you’re not taxed as much as you should be, that is why I am doing it this way, and I know what I am doing. So I assumed that he did. (Emphasis added.)

At the end of the trial, the trial judge made the following findings before holding that Knight failed to prove her claims:

According to the issue of fraud and deceit I had a hard time not granting the directed verdict [earlier] because in my opinion there was a lack of evidence concerning a fraudulent misrepresentation of a fact that [Day] knew or should have known was false. [Day] told her he was not a lawyer and she knew that he was not a lawyer. He gave them names of two lawyers to call and she calls one and chooses not to go in and she sees [attorney] Mr. Bond and doesn’t have him review all of the papers and see that he [Day] has committed fraud. If this is the unauthorized practice of law, then we need to have the committee, there’s a committee that studies those things in the legal profession and let’s fight it out down there. But your burden is to convince me that [Day] committed fraud or misrepresentation of fact. I don’t find that occurred and she [Knight] has to have justifiably relied on a misrepresentation. Again, [Day] has given her all kinds of opportunities to talk to lawyers, and if she chooses not to, I think she’s hard-pressed to come in this court and say, “Judge, he pulled the wool over my eyes and he duped me and I didn’t have any idea that I was getting ready to be taken to the cleaners because of his actions.” And that’s just not the facts the case show. For the reasons stated, it’s going to be my finding that Knight has failed on her complaint . . . for fraud and misrepresentation ....

The trial judge was wrong. Knight’s case against Day does not rise or fall only on the fact that Knight knew Day was not an attorney or because Knight did not avail herself of the opportunity to see an attorney. As mentioned above, Day held himself out as a person who knew what he was doing when incorporating Knight’s business and assuring Baker and Knight that it was all right to make Baker a shareholder. Day clearly told Baker, “I know what I am doing.” He asserted Baker could be made a shareholder/owner of Knight’s newly incorporated Subchapter S venture, but that representation was indisputably false, causing Knight to sustain damages.

In reading the trial judge’s remarks at the end of trial, it is abundantly clear that he only found the five elements of the tort of deceit were not proved and never mentioned constructive fraud, which Knight alleged, argued, and proved. In particular, the judge found Knight had failed to justifiably rely on a misrepresentation because Day gave Knight opportunities to talk to lawyers. However, it is not necessary that actual fraud exist to state a cause of action; it is sufficient if constructive fraud exists. See Roach v. Concord Boat Corp., 317 Ark. 474, 880 S.W.2d 305 (1994). This court has held many times that there may be constructive fraud, or fraud in the law, even when there is a complete absence of any moral wrong or evil intention. Id. It is also well settled that representations are construed as fraudulent when they are made by someone who, unaware of their falsity, asserts them to be true. Id. That is exactly what happened in the instant case.

Aside from whether or not Day gave Knight an opportunity to contact an attorney, Day very clearly and erroneously advised both Knight and Baker that Baker could become an owner/shareholder of Knight’s newly incorporated Subchapter S business. Such a misrepresentation of these facts proved to be untrue and constituted constructive fraud. Moreover, Day acted on this material misrepresentation by preparing and filing the documents required to make Baker an owner in Knight’s corporation. Certainly, since Day was convinced that his actions were proper and lawful in making Baker an owner of Knight’s corporate business, Knight was surely more than justified in relying on Day’s representations.

In conclusion, the majority opinion, where it states Knight did not make a false representation of fact, is wrong. As set out above, Day repeatedly represented that Baker could be a shareholder in a Subchapter S corporation when, in fact and law, she could not. This misrepresentation, even if believed true by Day, constituted constructive fraud and caused Knight to incur accounting fees in damages to correct her business structure and to remedy her situation with the Internal Revenue Service, which has questioned the taxes she paid (or did not pay) as an incorporated Subchapter S company. In alleging constructive fraud and seeking compensatory damages, Knight also requested punitive damages, to which she would be entitled upon proving her case for compensatory damages.

For the above reasons, I would reverse and remand the trial court’s decision.

       It seems that Ms. Knight received such notice from the State.

       It appears that Mr. Day prepared the following corporate documents and presented them to Ms. Knight for her signature: the articles of incorporation, the corporate franchise tax form, an election by the corporation as a Subchapter S (Arkansas form 1103), a consent to action taken in lieu of an organizational meeting, minutes of a special meeting of directors, and the resolution for the authorization of corporate loans.

       It should be noted that although appellants pled actual fraud in their complaint, they argued constructive fraud at trial, without objection by appellee.

       In Farm Bureau, the Court inadvertently labeled these elements as those that must be established to prove constructive fraud, when they are actually the elements of fraud, rather than constructive fraud.

       Day had a client who apparently was a counselor, and after a telephone conversation with that client, he decided that Baker could be a shareholder.

       We have held that five elements establish the tort of deceit: a false representation of a material fact; knowledge or belief on the part of the person making the representation that the representation is false or that there is not sufficient basis of information to make such a representation; an intent to induce the other party to act or refrain from acting in reliance upon the misrepresentation; a justifiable reliance upon the representation by the other party in taking action; and resulting damages. See Nicholson v. Century 21, 307 Ark. 161, 818 S.W.2d 254 (1991).

       Jack Lee Bottoms, a certified public accountant (CPA), testified he had to review and correct the 1995 tax returns and the IRS was questioning the structure of Knight’s business. Her bill was $250.00 and there was a balance of a $950.00 fee. He also had an amount in the sum of $820.00 due in connection with his work regarding the IRS inquiry.