author: Donald L. Corbin, Justice. Steele Hays, Justice. Tom Glaze, Justice.

text:
    Bobby Michael FRIEND v. STATE of Arkansas
    CR 93-518
    865 S.W.2d 275
    Supreme Court of Arkansas
    Opinion delivered November 15, 1993

      William H. Hodge, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Bobby Michael Friend, appeals a judgment of the Sevier Circuit Court convicting him of the capital felony murders of his parents and sentencing him to death on each count. Appellant raises two points for reversal of the judgment entered pursuant to the jury’s verdict. We find merit to his first point and therefore reverse the judgment of convictions and death sentences.

There is no doubt that appellant was arrested without a warrant upon first contact with law enforcement officials in Hot Springs, Garland County, Arkansas. Upon showing proper identification, he was handcuffed, read his Miranda rights while being transported to the Garland County Jail, and held until Sevier County officials could question him about the homicides of his parents. When the Sevier County officers arrived, appellant admitted to being in his parents’ home to get the keys to a family vehicle, a Chrysler Conquest, on the night of the murders. The Sevier County officials told appellant that they had a subpoena issued by the Sevier County Prosecuting Attorney and that they wanted to question him further in Sevier County. Appellant agreed to accompany them to Sevier County where he gave a detailed statement confessing to the murders of his parents.

As his first argument for reversal, appellant contends the trial court erred in denying his motion to suppress his statement which was obtained subsequent to appellant’s arrest. Appellant contends the statement and any other fruits of his arrest should have been suppressed at trial because he was arrested without a warrant and in violation of A.R.Cr.P. Rule 4.

At the hearing on appellant’s motion to suppress, the trial court ruled that although appellant was arrested without a warrant, there was probable cause to arrest appellant. His arrest was therefore lawful and his statements would be admissible at trial. On appeal, all presumptions are favorable to the trial court’s ruling on the legality of an arrest and the burden of demonstrating error rests on appellant. Munnerlyn v. State, 292 Ark. 467, 730 S.W.2d 895 (1987); Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976).

This court has held many times that probable cause to arrest without a warrant exists when the facts and circumstances within the collective knowledge of the officers and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed by the person to be arrested. See e.g., Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986) (and cases cited therein). Such probable cause does not require that degree of proof sufficient to sustain a conviction; however, a mere suspicion or even “a strong reason to suspect” will not suffice. Id. It is the officers’ knowledge at the moment of the arrest that determines whether probable cause exists. Id., (citing Beck v. Ohio, 379 U.S. 89 (1964)).

This court has also provided that:

(d) A warrantless arrest by an officer not personally possessed of information sufficient to constitute reasonable cause is valid where the arresting officer is instructed to make the arrest by a police agency which collectively possesses knowledge sufficient to constitute reasonable cause. [Emphasis added.]

A.R.Cr.P. Rule 4.1(d).

On this appeal, appellant has demonstrated that the officers who arrested him without a warrant did so in violation of A.R.Cr.P. Rule 4.1(d). Initially, we note our agreement with the trial court’s statement that the collective knowledge of the officers at the time of appellant’s arrest constituted reasonable cause to arrest him. We view the collective knowledge of the officers as amounting to reasonable cause in spite of the fact that two of the officers testified they did not suspect appellant committed the murders. However, we cannot agree that appellant’s arrest was lawful because it was made by an officer who did not personally possess the information constituting reasonable cause and who was not instructed by Sevier County officers, the officers who did possess the information constituting reasonable cause, to arrest appellant. See Rule 4.1(d). In short, the Sevier County officials did not instruct the arresting officers to arrest appellant; they merely requested other law enforcement agencies to stop appellant and hold him for questioning in the homicide investigation.

Lieutenant James Hale, of the Arkansas State Police, testified at the suppression hearing that his and Corporal Larry Lassiter’s purpose in contacting appellant, handcuffing him, reading him his Miranda rights, and transporting him to the Garland County Jail was in response to two terminal messages received from Sevier County. Lieutenant Hale testified that the second terminal message or “G-Log” included more information than the first and stated:

“Attempt to locate, stop and hold for homicide investigation, Michael Friend, white male, [DOB:] 11/6/72, 5’11” to six foot, 220 pounds, driving a silver ‘87 Chrysler Conquest. The license plate is given at this time, Arkansas SRZ 265. Last known contact with Friend was on Saturday. Believed subject possibly en route to Paragould to a Children’s Center there in the city. He was inquiring about the home before last seen. Authority Sevier County Sheriff’s Office.”

Our review of the record convinces us that the Sevier County law enforcement officers had reasonable cause at the time appellant was arrested, to suspect appellant either murdered his parents or was an accomplice to their murders, either of which is a felony. The arresting officers were not instructed to arrest appellant by the Sevier County officers, who were the officers with reasonable cause to suspect appellant. Appellant’s warrantless arrest was thus made in violation of A.R.Cr.P. Rule 4.1(d). His arrest and subsequent detention were therefore unlawful.

This court has stated that “[a]s to the illegal arrest, it has long been the rule that statements, like objects, are to be excluded as evidence if they are found to be the fruits of an unlawful arrest.” Roderick, 288 Ark. at 365, 705 S.W.2d at 436, (citing Wong Sun v. United States, 371 U.S. 471 (1963)). Having decided appellant was unlawfully arrested and detained, we must now decide whether his confession meets the Fifth Amendment voluntariness standard as well as whether any of appellant’s Fourth Amendment rights were violated. Rose v. State, 294 Ark. 279, 742 S.W.2d 901 (1988).

The custodial statement is presumed involuntary and the state must prove that the custodial statement was voluntary and had no causal connection with the illegal detention. Roderick, 288 Ark. 360, 705 S.W.2d 433 (citing Brown v. Illinois, 422 U.S. 590 (1975)). Whether the confession or statement is an act of free will under Wong Sun must be answered on the facts of each case applying the following four factors as stated in Brown-. (1) the giving of Miranda warnings; (2) the temporal proximity of the arrest and confession; (3) the presence of intervening circumstances; and particularly (4) the purpose and flagrancy of the official misconduct.

. In its brief, the state ignores its burden and the need for this analysis and offers no argument to support a finding that appellant’s confession was not caused by his unlawful arrest and detention. We therefore engage in this analysis on our own.

As for the first factor, the record reveals that appellant was given Miranda warnings at least twice. On appeal, appellant does not contest that he was read his rights or that he waived them. The first factor therefore weighs heavily in the state’s favor and the threshold requirement of “voluntariness” under the Fifth Amendment is satisfied. Taylor v. Alabama, 457 U.S. 687 (1982).

We continue then with our analysis of Fourth Amendment violations. As for temporal proximity of the arrest and confession, there was approximately seven hours between the two. Appellant was arrested at approximately 10:15 a.m. and gave the incriminating statement sometime after 5:00 p.m. However, as this court stated in Rose while relying on Taylor, 457 U.S. 687, a period of a few hours between the arrest and confession does not of itself remove the taint of the illegal arrest.

As for the third consideration of intervening circumstances, we observe that appellant was in the company of law enforcement officers the entire time from his arrest until he confessed. There is no evidence that he requested or had contact with friends, remaining family, or counsel despite his receipt of Miranda warnings. However, we also observe that when the questioning in Garland County concluded, the officers told appellant they had a prosecutor’s subpoena and wanted to talk with him further in Sevier County. After stating he did not have a way to get to DeQueen, appellant accepted the offer to return to DeQueen with the Sevier County officials.

Appellant does not contend he was required or forced to return with the officers. Although the murders were discussed, the officers did not interrogate appellant, they merely answered his questions. On the way to DeQueen, appellant was not handcuffed and the car doors were not locked. The officers stopped for lunch at a drive-in window at a McDonald’s and offered to pay for appellant’s lunch, but he refused. The officers testified that appellant was free to go at any time and that if he had tried to get out of the car at the Dierks junction, they could not have stopped him. The record is silent as to whether appellant was expressly informed that he was not required to return to DeQueen with the Sevier County officers. Appellant did not testify at the suppression hearing nor at trial, thus we have no evidence to conflict with the officers’ testimonies.

We conclude that although there is not an overwhelming number of intervening circumstances, there was indeed one — the conclusion of the interrogation at the Garland County Jail and the following request to continue interrogation in Sevier County to which appellant voluntarily agreed. However, like the second factor, the presence of these intervening circumstances is not sufficient in and of itself to remove the taint of the illegal arrest and detention.

The fourth factor, the.purpose and flagrancy of the officials’ misconduct, is particularly relevant. Brown, 422 U.S. 590. The Hot Springs officers’ purpose in contacting appellant was to respond to Sevier County’s request to hold appellant for questioning in his parents’ murders. However, rather than responding to the request to hold appellant for questioning, the Hot Springs officers arrested appellant. They followed the department’s policy of handcuffing any person that is transported. Appellant was immediately told why he was being held and read his Miranda rights en route to the Garland County jail where he was held in the booking room.

The Sevier County officers arrived at the Garland County Jail and questioned appellant in a criminal investigation room. After admitting to being in his parents’ home three days earlier, the Sevier County officers told appellant they had a subpoena issued by the Sevier County Prosecuting Attorney and they wished to question him further in Sevier County. Appellant agreed to ride back to Sevier County with the officers. Upon arrival at the Sevier County Courthouse, appellant waited in a lounge area, was served with the prosecutor’s subpoena albeit in the complete absence of the prosecutor, and then confessed to the murders.

This court has held that the prosecutor’s subpoena cannot be used by the police to obtain the presence of a witness for questioning by the police, absent the prosecutor. State v. Shepherd, 303 Ark. 447, 798 S.W.2d 45 (1990). In the present case, the prosecutor’s subpoena was not served in the prosecutor’s presence; the record is clear that it was used to subvert the requirements applicable to investigative stops. The record is also clear that the officers did not take any action to seek an arrest warrant once they were within the jurisdiction of Sevier County. We cannot overlook these failures to comply with appellant’s Fourth Amendment rights.

In summary we find the sum of the four factors do not weigh in the state’s favor. Appellant received his Miranda warnings at least twice. However, there was a delay of only seven hours between the arrest and the confession and while there may have been one intervening circumstance, both the delay and the intervening circumstance occurred while appellant was in continuous custody of law enforcement authorities. The official misconduct, while not flagrant in the sense that it was not glaring or obvious or of evil purpose, was nevertheless still misconduct. The United States Supreme Court has refused to recognize an exception to the exclusionary rule based on the “good faith” beliefs and actions of police misconduct. Taylor, 457 U.S. 687. Therefore, we conclude the state has failed to meet its burden of breaking the causal connection between the confession and the illegal arrest.

For the reasons stated in the foregoing, we conclude the trial court erred in denying the motion to suppress the confession and any other fruits of the unlawful arrest. Accordingly, we reverse the judgment and remand for a new trial.

We address appellant’s second point to the limited extent, if any, it is likely to arise on re-trial. As his second point for reversal, appellant contends that prejudicial error occurred in the sentencing phase of the trial when his sister referred to appellant’s prior juvenile conviction for some kind of sexual misconduct. The sister’s comment was completely non-responsive to any question the prosecutor asked and appellant immediately objected. The trial court sustained the objection and instructed the jury that juvenile records are to remain confidential and to disregard the sister’s comment. Appellant moved for a mistrial which the trial judge denied on the basis that the jury assured him they could disregard the comment. Appellant claims the denial of the mistrial was error.

It is likely that no error occurred here as appellant opened the door to such a comment. Appellant offered testimony from the recipient of a letter appellant had written in which appellant stated the juvenile charges had been dropped. When a defendant opens the door to issues of character, the state is entitled to rebut those issues of character. Pickens v. State, 301 Ark. 244, 783 S.W.2d 341, cert. denied, 497 U.S. 1011 (1990).

However, even assuming without deciding that error occurred here, any error was rendered harmless by the jury’s unanimous finding that appellant had no prior criminal history as a mitigating circumstance. Thus, we can be assured the jury followed the trial court’s admonition to disregard the sister’s comment about the juvenile charges resulting in a conviction. We observe that we have previously allowed the jury’s findings as to mitigating and aggravating circumstances, or the lack thereof, to illustrate that no prejudice occurred. Pickens, 301 Ark. at 252-53, 255, 783 S.W.2d at 346, 348.

A mistrial is a drastic remedy only to be resorted to when there has been error so prejudicial that justice cannot be served by continuing the trial. Pickens, 301 Ark. 244, 783 S.W.2d 341. Since the trial court did not abuse its discretion in denying the mistrial and there was no manifest prejudice to appellant, we conclude that no reversible error occurred. Id.

There is no indication in appellant’s brief that all objections decided adversely to him have been abstracted as required by Ark. Sup. Ct. R. 4-3(h). Appellant has thus failed to comply with Rule 4-3(h). However, the state has stated in its brief that it has examined the transcript and made certain that all rulings adverse to appellant have been abstracted. In addition, pursuant to Ark. Sup. Ct. R. 4-3(h), we have examined the transcript for prejudicial errors objected to by appellant but not argued on appeal. We conclude that no such prejudicial errors occurred, other than the one for which we reverse and remand today.

The judgment of convictions and the sentences of death are reversed and remanded for a new trial.

Hays, Glaze, and Brown, JJ., dissent.

Steele Hays, Justice.

When the majority concludes there was reasonable cause to arrest the appellant for the murders of his parents, that disposes of appellant’s point for reversal. Yet the majority then proceeds to reverse upon grounds argued neither here nor in the trial court. The majority declares the appellant has demonstrated that the officers arrested him without a warrant and that his arrest was in violation of Ark. R. Crim. P. 4.1(d). As to a warrant, if the officers collectively had reasonable cause to believe the appellant was involved in the murders of his parents, there is no requirement that they obtain a warrant for his arrest. Ross v. State, 300 Ark. 69, 779 S.W.2d 161 (1989); United States v. Bazinet, 462 F.2d 982 (8th Cir. 1972); Ark. R. Crim. P. 4.1(a). Appellant’s arrest is presumed to be valid and the burden is on the appellant to demonstrate the illegality of the arrest. Brewer v. State, 271 Ark. 810, 611 S.W.2d 179 (1981); Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976). Since the appellant did not testify at the suppression hearing and offered no testimony whatever pertinent to this appeal, such proof is wholly lacking.

Having concluded that appellant was arrested by the Garland County officers, the majority holds such arrest was invalid because the arresting officers were not instructed to arrest the appellant, merely to hold him for questioning. That, of course, is exactly what they did. Yet the majority declares that to have been an arrest and in the same breath invalidates it, not for lack of probable cause (which is all the appellant argues), but because the officers were not instructed to arrest. Thus the police are put in a no-win situation under today’s holding. Whatever legal effect the majority chooses to place upon it, there is no contention or evidence that the Garland County officers were not authorized to proceed exactly as they did by picking up the appellant in response to the terminal message from Sevier County. If they effectively arrested him in the process, it is only because they followed departmental policy that all individuals be handcuffed while being transported, a policy intended for their safety and that of the officers. If that policy conflicts with the rules of this court, the individual officers ought not to be penalized merely for acting in obedience to departmental rules.

Be that as it may, by reversing for a violation of Rule 4.1(d) the majority reverses upon a point not asserted by the appellant either here or in the trial court and thus not passed on by the trial judge or briefed by either the appellant or the state. It is notable that the majority cites no authority for its interpretation of the rule and certainly none appears in the briefs, since this theory for reversal originates wholly with the majority. Indeed, the only cases cited by the appellant are Rose v. State, 294 Ark. 279, 742 S.W.2d 901 (1988), and Roderick v. State,288 Ark. 360, 705 S.W.2d 433 (1986), which deal simply with reasonable cause.

Finally, even if the appellant was invalidly arrested at Hot Springs by virtue of being handcuffed during the ten minute ride to headquarters, there is not the slightest proof that his confession was causally related to the arrest. See Roderick v. State, supra. It is undisputed that appellant was not arrested by the Sevier County officers, who testified without contradiction that appellant was not arrested and was free to accompany them or not as he chose. He rode with them to DeQueen by his own request and was free to leave at any time. Nor was he questioned by them during the trip to DeQueen. Appellant makes no claim that he was coerced. He arrived back in DeQueen between 5:00 and 5:30 p.m. and confessed at 5:30 after the Miranda warnings were twice read to him. In short, appellant has not produced one iota of evidence to overturn the findings of the trial court that his confession was freely and voluntarily made and the judgment should be affirmed.

Glaze and Brown, JJ. join in this dissent.

Tom Glaze, Justice.

I join Justice Steele Hays’s dissent, but write only to say the majority opinion’s single reason for reversing is the court’s hypertechnical construction of its own rule, A.R.Cr.P. Rule 4.1(d). The majority court agrees that the Sevier County officers had collective knowledge that constituted reasonable cause to arrest the appellant without a warrant. Nonetheless, the court opines that the arrest, as it occurred, was unlawful because the state police officers actually making the warrantless arrest had no reasonable cause information to arrest appellant and the Sevier County officers, having that information, failed specifically to instruct the state law enforcement officers to arrest appellant. Instead, the Sevier County officers merely informed other police authorities to stop and hold appellant for questioning, not arrest him. The majority court reverses based upon its reading of Rule 4.1(d) which reads as follows:

(d) A warrantless arrest by an officer not personally possessed of information sufficient to constitute reasonable cause is valid where the arresting officer is instructed to make the arrest by a police agency which collectively possesses knowledge sufficient to constitute reasonable cause, (majority court’s emphasis)

Here, even if Rule 4.1(d) was technically violated, appellant suffered no prejudice from his initial arrest. He gave no statement to the arresting officers in Garland County, and it is difficult for me to understand how the majority court can say the statement he eventually gave authorities in Sevier County resulted from his arrest in Hot Springs. As noted in the majority opinion, appellant voluntarily agreed to go to Sevier County for further interrogation. Thus, the confession eventually given by appellant in Sevier county is the fruit of his own voluntary decision to return to Sevier County, not from his so-called illegal arrest in Hot Springs.

For the reasons above and those stated in Justice Hays’s dissent, I would affirm appellant’s conviction.

Hays and Brown, JJ. join in this dissent.

       The collective knowledge of the officers at the time appellant was arrested was based on the following reasonably trustworthy information: three months prior to the murders, appellant’s father reported that he suspected appellant had stolen his gun and that appellant would do him harm; a week or two before the murders appellant attempted to seek advice on how to get back at someone; several days prior to the murders, appellant had a conversation with a workmate concerning the sale or purchase of a pistol in appellant’s possession; a family friend reported the Friends missing for several days; officials found the Friends bludgeoned, stabbed, and cut to death in their bed at their home in DeQueen, Sevier County, Arkansas; there was no forced entry into the home; a robbery was staged and the only thing missing besides appellant was a vehicle; the vehicle was recovered and impounded by law enforcement officers; the vehicle was recovered at one of appellant’s friend’s house who, along with appellant and two other friends, had been stopped by an officer in DeQueen on the night of the murders, two of the friends told yet another friend that “someone will die tonight” and made slashing gestures to their throats; appellant’s mother’s throat and neck had been cut multiple times; after recovering the missing vehicle, police questioned two of the friends, one of which initially denied being in DeQueen on the night of the murders but later admitted having “forgotten” the trip to DeQueen; appellant contacted officials inquiring as to why the “missing” vehicle had been impounded and leaving a bogus phone number at which his call could be returned.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    UNITED-BILT HOMES, INCORPORATED v. Charles SAMPSON
    93-384
    864 S.W.2d 861
    Supreme Court of Arkansas
    Opinion delivered November 15, 1993

      C. Alan Gauldin, for appellant.

      Mike Wilson, for appellee.
   Donald L. Corbin, Justice.

Appellant, United-Bilt Homes, Incorporated, appeals a judgment of the Pulaski Chancery Court finding that appellant’s complaint for foreclosure against appellee, Charles Sampson, was a compulsory counterclaim that should have been filed in a previous suit between the same parties. For reversal appellant relies on ARCP Rule 13(a) and (d) and asserts two points of error. We find merit to the first point of error and therefore reverse and remand.

This is the second appeal we have heard involving the same parties. In United-Bilt Homes, Inc. v. Sampson, 310 Ark. 47, 832 5. W.2d 502 (1992) (Sampson I), we affirmed Sampson’s judgment for compensatory and punitive damages against United-Bilt. In that case, we held that United-Bilt, who was the loss-payee on Sampson’s homeowner’s policy, had wrongly refused to release insurance proceeds to the contractor who repaired Sampson’s home following a fire. The instant case was initiated on July 23, 1992, the day after we delivered our decision in Sampson I, when United-Bilt filed a complaint for foreclosure against Sampson. Sampson answered and filed a motion to dismiss claiming the foreclosure action was a compulsory counterclaim under ARCP Rule 13 which should have been asserted in Sampson I. After a hearing on the motion, the chancery court found the action for foreclosure was a compulsory counterclaim which should have been brought in the previous lawsuit and granted the dismissal.

On appeal, United-Bilt asserts two reasons the chancellor’s ruling was in error. First, United-Bilt argues the foreclosure action did not “arise[] out of the transaction or occurrence” litigated in the previous suit as that phrase is used in Rule 13(a). Second, United-Bilt argues that according to Rule 13(d), its cause of action did.not mature until after the issues were joined because it did not exercise its option to accelerate the entire indebtedness until after it had filed its answer.

Initially, we observe that issues are joined when a fact or conclusion of law is asserted in one party’s pleading and is admitted or denied in the responding party’s pleading. Ark. Code Ann. § 16-64-102 (1987); Harrison v. Glass, 264 Ark. 428, 572 S.W.2d 143 (1978). We also observe that a cause of action on an entire debt owed under an installment sales contract with an optional acceleration clause does not arise until the option is exercised. Hodges v. Dilatush, 199 Ark. 967, 136 S.W.2d 1018 (1940). The issues in Sampson I were joined on December 5, 1990, when United-Bilt filed its answer to Sampson’s third-party complaint. As of that point in time, the record reveals that Sampson was at most two payments behind, but that United-Bilt had not exercised its option to accelerate the debt. Thus, we are inclined to agree with United-Bilt’s second argument. However, because we conclude the trial court erred in determining the two cases arose out of the same transaction or occurrence, we need not analyze the merits of United-Bilt’s second argument.

From the bench, the trial court stated its reasoning for granting the dismissal. The chancellor reasoned that the two cases arose from the mortgage and thus from the “same transaction or occurrence.” In order to decide whether appellant’s foreclosure action arose out of the same transaction or occurrence litigated in Sampson I, we must look to the facts surrounding that case. There was a fire at Sampson’s home. United-Bilt was the loss-payee on Sampson’s homeowner’s insurance policy. Consequently, the insurance company issued a check payable to both UnitedBilt and Sampson. Sampson and United-Bilt agreed the insurance proceeds would be used to repair the home. On that promise, Sampson endorsed the check and contracted with a contractor to complete the repairs. United-Bilt held the funds in escrow, but refused to pay out approximately $12,000.00 of the funds when the repairs where finished. Sampson was unable to pay the contractor who had completed the work. The contractor sued Sampson for the balance due on the contract and Sampson impleaded United-Bilt alleging tortious interference with his contract with the contractor.

Sampson I involved two contracts. First, there was the contract between Sampson and the contractor who made the repairs. Second, there was the contract between Sampson and UnitedBilt, whereby Sampson agreed to have the property repaired and United-Bilt agreed to use the insurance proceeds to pay for the repairs. While the relationship of mortgagor and mortgagee between Sampson and United-Bilt existed at the time of the contract regarding the insurance proceeds and was the reason the proceeds were payable to Sampson and United-Bilt jointly, neither this relationship nor the mortgage itself was at issue in Sampson I. To the contrary, it is precisely the mortgage and the mortgagee-mortgagor relationship that is at issue in the instant case.

Rule 13 of the Arkansas Rules of Civil Procedure provides in pertinent part:

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which, at the time of filing the pleading, the pleader has against any opposing part, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13.
(b) Permissive Counterclaim. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.

The transaction or occurrence at issue in Sampson I was the disbursement of insurance proceeds for a repair contract. The execution of the mortgage and subsequent default thereof that is at issue in the instant foreclosure action is a separate “transaction or occurrence.” Thus, according to Rule 13(a), the chancellor erred in dismissing the suit.

This court has previously held that one document may be the source of two independent claims, one of which is not necessarily a compulsory, counterclaim to be asserted with the other. Baltz v. Security Bank of Paragould, 272 Ark. 302, 613 S.W.2d 833 (1981). Our holding today is consistent with Baltz. Moreover, as Sampson at most was two payments behind at the time the issues were joined in Sampson I, our holding is consistent with the principle of permitting equity courts to protect a debtor against an inequitable acceleration of the maturity of a debt. Tucker v. Pulaski Fed. Sav. & Loan, 252 Ark. 849, 481 S.W.2d 725 (1972); Crone v. Johnson, 240 Ark. 1029, 403 S.W.2d 738 (1966).

The judgment dismissing the foreclosure action is reversed- and remanded for further proceedings consistent with this decision.


author: Per Curiam.

text:
    Ronald PORTER v. STATE of Arkansas
    CR 93-1158
    865 S.W.2d 300
    Supreme Court of Arkansas
    Opinion delivered November 15, 1993

      Cross, Kearney & McKissic, by: Jessie L. Kearney, for appellant.
    No response.
   Per Curiam.

Ronald Porter, by his attorney, has filed a motion for a rule on the clerk requesting permission to file an untimely petition for review. Because our rule on motions for rule on clerk, Ark. Sup. Ct. R. 2-2, provides for belated appeals rather than belated review of decisions of the court of appeals, we treat the motion as a petition for belated review.

In this criminal case, the movant’s convictions were affirmed by the court of appeals on September 22, 1993. Porter v. State, 43 Ark. App. 110, 861 S.W.2d 122 (1993). Porter wished to seek a review by this court. However, Porter’s attorney, Jesse L. Kearney, admits by motion that the petition for review was tendered late due to a mistake on his part in calculating the due date..

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant permission to file a belated petition for review. See Colyer v. State, 280 Ark. 336, 657 S.W.2d 548 (1983) (per curiam).

The request to file a belated petition for review is therefore granted, and a period of 17 days is allowed for the filing of the petition for review. A copy of this order will be sent to the Committee on Professional Conduct.


text:
    IN RE: Michael BOOKER
    868 S.W.2d 443
    Supreme Court of Arkansas
    Opinion delivered November 19, 1993
   Per Curiam.

By letter dated October 26, 1993, the Clerk’s office requested Mr. Michael Booker to return the transcripts he checked out in the following cases on the corresponding dates:

9/3/92 CACR96-108 Robert Runyon v. SOA 1 Vol.

3/18/93. CACR91-291 John B. Yancy v. SOA 2 Vols.

5/3/93 CR90-97 Jesse James Terry v. SOA 1 Env.

Exhibits and 2 Vols.

The Clerk asserts his office had sent other letters prior to the October 26, 1993 communication, advising Mr. Booker that he was delinquent in returning the foregoing transcripts, and the Clerk has received no responses. In the October 26, 1993 letter, Mr. Booker was informed that his delinquency in this matter would be reported to this court, at which time a citation would be issued commanding Mr. Booker’s appearance to show cause why a citation for contempt should not issue. Mr. Booker again failed to respond.

Based upon the foregoing, the Clerk hereby orders Mr. Booker to return the above-described transcripts forthwith. Further failure to respond will subject Mr. Booker to an order to show cause.


author: Jack Holt, Jr., Chief Justice.

text:
    EAST POINSETT COUNTY SCHOOL DISTRICT NO. 14 v. Marilyn MASSEY
    93-450
    866 S.W.2d 369
    Supreme Court of Arkansas
    Opinion delivered November 22, 1993

      Bill Bristow, P.A., for appellant.

      Mike Everett, for appellee.
   Jack Holt, Jr., Chief Justice.

At issue in this case is the effect of legislation that resulted in the supplementation of the terms of a consolidation agreement between two school districts as to the election of school board members. We hold that the legislation did not impair the agreement between the two districts and that the trial court erred in finding otherwise.

On January 23, 1986, the Lepanto and Tyronza School Districts, under the auspices of Act 125 of 1961, entered into a consolidation agreement by which a new entity, East Poinsett County School District No. 14, was created. By a vote of 448 to 108 in Lepanto and 235 to 49 in Tyronza, voters in the old districts approved the agreement.

The consolidation agreement made the following provision for a board of directors:

The board of directors of the consolidated district shall be comprised of all members of the boards of both the Tyronza School District and the Lepanto School District until the school election of 1987, at which time the board shall be composed of six members, three of which shall be from the former Tyronza School District, and three shall be from the former Lepanto School District, those positions remaining as active school board positions to be determined by a majority of the board of directors of the consolidated school district in sufficient time prior to the 1987 school election so as to provide for timely filing for such positions. Upon the establishment of the six positions to comprise the board of directors of the consolidated district, the current board of directors, comprised of all the board members of the two districts prior to consolidation, shall determine the terms of each position, such positions to have staggered terms, in pairs, of one, two, and three years, respectively. Thereafter, all six positions will be up for election at the 1987 school election with two board positions to be on the ballot each year thereafter. The zones of board members in each of the two districts shall remain the same. It is the intent of this agreement that there shall at all times following the consolidation be three directors who reside in the current boundaries of the Lepanto School District. Vacancies on the board of directors will also be filled by area residents to insure the proportionate representation hereinabove stated. A director who moves his residence from the area in which he was residing at the time of his election or appointment shall be disqualified, and a vacancy shall exist on the board of directors.

The agreement also contained the following language regarding the applicable law:

The consolidation shall be effected, if approved by the electors of each District, in accordance with the provisions of Act No. 125 of the Acts of Arkansas of 1961, as amended and supplemented by other laws of the State of Arkansas.

Act 125 of 1961, which provided an alternative consolidation method for two to eight districts, was codified at Ark. Code Ann. § 6-13-301 et seq. (1987) and repealed in its entirety by Act 294 of 1993, § 7.

In 1989, upon the passage of Act 872, the General Assembly provided a local option for the election of school board directors from single-member zones. Ark. Code Ann. § 6-13-615 (Supp. 1993). The boundaries of the zones would aim at establishing units with “substantially equal population based on the most recent available census information, and, from which, racial minorities may be represented on the board in proportions reflected in the district population as a whole.” Ark. Code Ann. § 6-13-615(c).

As a result of this later legislation, a petition was filed to place a proposal on the ballot for the annual school election of September 15, 1992, for “the dividing of East Poinsett County School District Number 14 into six (6) zones of substantially equal voting age population for the purpose of the election of school board members from these zones, i.e., election by single-member zones.” In reaction, Marilyn Massey, the appellee, filed an action for mandamus to compel the members of the Poinsett County Election Commission to remove the issue from the ballot on the grounds that the East Poinsett County School District No. 14 was obligated to fulfill the contracts of the former districts pursuant to Ark. Code Ann. § 6-13-220 (1987), which was subsequently repealed by Act 294 of 1993, § 7.

The complaint asserted that the division into six substantially equal zones would favor the former Lepanto district area (which at that point had a considerably larger voting age population than the former Tyronza district), thereby defeating and nullifying the portion of the consolidation agreement, written pursuant to Ark. Code Ann. § 6-13-301 et seq., that provided for an equal division of school board members. In response, the election commissioners contended that the agreement provision calling for split representation and, in particular, Ark. Code Ann. § 6-13-309 (1987), which authorized agreements by directors of former districts, were unconstitutional because they did not assure equal representation on the school board based on a relationship to the population density, geography, and racial composition of the former districts.

The election was allowed to proceed, and single-member districts were approved by a vote of 613 to 430. Ms. Massey then filed against East Poinsett County School District No. 14, seeking to overturn the election results on the basis of the consolidation agreement. She argued that Ark. Code Ann. § 6-13-615 — the provision for elections for directors from single-member zones —unconstitutionally impaired contractual rights. The school district replied that subsequent school laws necessarily applied and that the maintenance of the original model of representation would unconstitutionally dilute the votes of the residents of the former Lepanto district.

In its declaratory judgment, the circuit court found that the measure had passed but that the consolidation agreement was binding on the East Poinsett County School District No. 14. The court noted that the school district did not challenge Ark. Code Ann. §6-13-301 et seq. as violative of the United States or Arkansas Constitutions. Specifically, the court found “that portion of the agreement that provides for a school board made up of three members from each of the old districts is binding on the present district.” The agreement, the court stated, operated to prohibit and preclude the effect of the election.

Subsequently, the circuit court issued a supplemental opinion in which it found that Ark. Code Ann. § 6-13-615, the statutory authority for the September 1992 election, did not affect the terms of the consolidation agreement. The court further observed that Article 1, § 10, of the United States Constitution and Article 2, § 17, of the Arkansas Constitution prohibit the state from acting to impair the obligation of contracts. Finally, the court explicitly found that “the issue or effect of any federal law, including the Voting Rights Act of 1965, was specifically not presented to the Court.”

On appeal, we have determined that the appropriate issue for consideration is the one relating to the impairment of contractual obligations and the authority of the legislature to create, amend, and unmake laws. Because we are able to reach a decision on this basis, it is unnecessary for us to address the voting-rights question.

The United States and Arkansas Constitutions employ the identical phrase in forbidding the enactment of any “law impairing the obligation of contracts.” U.S. Const., Art. 1, § 10; Ark. Const., Art. 2, § 17. Writing in The Federalist, No. 44 (Jan. 25, 1788), James Madison pronounced such “legislative interferences, in cases affecting personal rights,” to be “contrary to the first principles of the social compact and to every principle of sound legislation.” The constitutional prohibition, he emphasized, would “inspire a general prudence and industry, and give a regular course to the business of society.”

As indicated by Madison’s language, the protected contractual relationships fall within the private realm, though, naturally, they redound to the public good. There has long been a distinction between private and public contracts: “[A] private contract may be regarded as one between individuals only and affecting private rights, while a public contract is one to which the state is a party, and which concerns all its citizens.” People v. Palmer, 35 N.Y.S. 222, 225 (N.Y. Sup. Ct. 1895).

In its supplemental opinion, the circuit court found that “The Consolidation Agreement in this case is a valid, binding contract between two former school districts. Therefore, the State, under subsequent law, cannot impair the obligations of a contract, including this Consolidation Agreement.” Implicit in the circuit court’s conclusion was the erroneous assumption that the pact between the two governmental subdivisions was a private contract.

We have held that Ark. Const., Art. 2, § 17, “prevents only the passage of statutes which would have the effect of impairing obligations previously entered.” Mahurin v. Oaklawn Jockey Club, 299 Ark. 13, 771 S.W.2d 19 (1989). In Hand v. H & R Block, Inc., 258 Ark. 774, 528 S.W.2d 916 (1975), we quoted with approval the following passage from Willys Motors v. Northwest Kaiser-Willys, 142 F.Supp. 469, 471 (D. Minn. 1956):

There is one important proviso which must be met before legislation which impairs contractual obligations can be upheld; that is, the legislation in question must be enacted for a public, as contrasted with a private, purpose.

258 Ark. at 782, 528 S.W.2d at 921.

Thus, in National Surety Corp. v. Edison, 240 Ark. 641, 401 S.W.2d 754 (1966), this court, considering a contract arising from the approval of a bond issue for the construction,'On land belonging to a non-profit organization, of a building to be used for manufacturing purposes, determined that “there is no doubt that the contract here involved is a public contract as opposed to a private contract.” Id., 240 Ark. at 643, 401 S.W.2d at 755. (Emphasis in original.) Further, we observed, “We can’t imagine anything more public than an election to authorize the issuance of bonds in the amount of $10,000,000.” 240 Ark. at 644, 401 S.W.2d at 755.

The underlying election in National Surety Corp. v. Edison served to confirm the public status of the construction contract. Here, similarly, an election was at the very heart of the controversy; indeed, it triggered the controversy. The genesis of the action is clearly indicative of the public nature of the matter. Moreover, the parties to the 1986 consolidation agreement were both school districts, which are state entities supported by constitutionally authorized taxation. Ark. Const., Art. 14, § 3.

The Arkansas Constitution vests in the General Assembly the duty and authority to make provisions for the establishment, maintenance, and support of a common, i.e., public, school system in the state. Saline County Board of Education v. Hot Spring County Board of Education, 270 Ark. 136, 603 S.W.2d 413 (1980). Long ago, this court declared that “the legislative control over the organization of school districts and changes therein is supreme.” Krause v. Thompson, 138 Ark. 571, 575, 211 S.W. 925, 926 (1919).

In Act 294 of 1993, § 7, the General Assembly repealed Act 125 of 1961. Prior to that, however, the legislature provided the mechanism utilized by the East Poinsett County School District No. 14 in the election of September 15, 1992. Act 872 of 1989, codified at Ark. Code Ann. § 6-13-613 (Supp. 1993) and still effective, authorized elections for and the establishment of single-member zones. Nowhere has Mrs. Massey cited any authority for restricting the legislature in its power to amend, modify, or even obliterate its previous actions. Reaves v. Jones, 257 Ark. 210, 515 S.W.2d 201 (1974).

We hold that, under these circumstances, there was no impairment of contract because the' contract between the two former districts was public, not private, in nature, and was thus subject to legislative action. In sum, the circuit court erred in its findings regarding the consolidation agreement and in invalidating the effect of the election of September 15, 1992.

Reversed and dismissed.


author: Steele Hays, Justice.

text:
    Robert L. BARKER v. C. Dean NELSON, Robert A. Barker, II and Sherry Barker, and Daniel Thomas Barker and Pamela Barker
    93-456
    866 S.W.2d 821
    Supreme Court of Arkansas
    Opinion delivered November 22, 1993

      Arnold, Hamilton & Streetman, by: Thomas S. Streetman, for appellant.

      Griffin, Rainwater & Draper, by: Gary M. Draper, for appellees.
   Steele Hays, Justice.

This is a second appeal. The litigation concerns a 1982 conveyance by Robert L. Barker and Helen Barker to their sons, Robert A. Barker II and Daniel Thomas Barker, appellees. In that transaction the parents deeded lots in Crossett to the sons, retaining a life estate in themselves. The deed was shown to the sons at a family gathering and then retained by the parents. Shortly after the meeting each son received a photostatic copy of the warranty deed.

After Helen Barker’s death in 1988 Robert L. Barker announced his intention to remarry, prompting the sons to record one of the copies of the deed. Robert L. Barker filed suit to cancel and expunge the recorded deed as being merely a copy. The chancellor found that the deed had been delivered and that a valid conveyance of real property, subject to a life estate, had occurred. He further held the copy was not subject to recordation and should be expunged.

Robert L. Barker appealed solely on the issue that there had been no delivery and, hence, no conveyance of title. We rejected those contentions and affirmed, citing cases to the effect that while a grantor must ordinarily surrender dominion and control of a deed for delivery to occur, when a life estate is retained by the grantor, an effective delivery occurs where the grantor shows the deed to the grantee, though the instrument itself remains in the custody of the grantor. See Barker v. Nelson, 306 Ark. 204, 812 S.W.2d 477 (1991). Thus we affirmed the chancellor’s holding that when Robert L. Barker showed the original deed to his sons, he effectively delivered the deed.

Soon after the decision in Barker I became final, the sons (appellees) were notified that appellant no longer had the original deed. Appellees then filed suit seeking authority to record a duplicate copy of the deed. That pleading was inadvertently docketed by the clerk in the circuit court of Ashley County rather than in the chancery court. Over appellant’s objection the case was transferred to chancery and consolidated with the original suit. Appellees then petitioned for the appointment of a commissioner to execute a deed conveying the subject lots to them. A motion to strike that pleading was denied and the chancellor ordered the clerk to serve as a commissioner to execute and record a deed to the appellees. Robert L. Barker again appeals and again we affirm the chancellor.

Appellant argues that the chancellor erred in consolidating the later complaint (No. 92-49-1) with the original suit in equity (No. E-90-191-2), erred in denying the motion to strike and erred in appointing a commissioner to execute a deed. Several subsidiary theories are also advanced as a bar to appellees’ suit: res judicata, rule of the case and compulsory counterclaim.

We do not think it necessary to address appellant’s points in specific fashion. The problem with appellant’s arguments, as we perceive them, lies not in the legal principles per se, but in their application to this case. In other settings they might be controlling, but here they amount to little more than an artful attempt to undo and reverse what has already been resolved by trial and review. This case was tried on its merits, decided adversely to the appellant and unanimously affirmed on appeal. We can conceive of no sound reason why the chancery court should be powerless to do those things necessary to implement its decretal orders to a conclusion. We reject the contention that appellant’s convenient misplacement of the original deed renders the chancellor impotent to enforce what has been decided and upheld. Certainly nothing in appellant’s brief binds us to such an untoward result.

Whether the complaint in No. 92-49-1 was consolidated with the earlier case (No. E-90-191-2), or remained a separate case, matters not at all. The salient fact is that the chancery court, having jurisdiction of the parties and subject matter, had held that a valid conveyance had occurred and this court has long recognized the broad powers of equity to do those things necessary to finalize that result. See e.g. Wilson v. Parkinson, 157 Ark. 69, 247 S.W.2d 774 (1923):

This appeal is from the decree of the Drew Chancery Court between the same parties in interest and pertaining to the same subject-matter that was embraced in the original decree of the Drew Chancery Court of January 4, 1917. By this action the appellee seeks to enforce that decree, by enjoining the appellant from selling any of the lands involved in that decree, and by entering upon the records in his office a memorandum or notation showing the effect of the decree of the Drew Chancery Court as to the lands that were the subject-matter of that decree. The allegations of the complaint bring it well within the original and undoubted powers of a court of chancery to entertain an action ancillary to the original proceeding in the same, or a different, court, and dependent upon such proceeding, and which has for its purpose the enforcement of a judgment or decree previously rendered, in order that complete justice may be done to the parties in interest, as the exigencies of the case may require. 10 R.C.L. Equity § 106 (1915); Coltrane v. Templeton, 106 F. 370 at 374 (1901) (and cases cited therein) and 21 C.J. Equity § 867 (1920).
“Where a decree is incomplete and ineffective for want of provision of any means for its execution, a bill in equity will lie to supply the imperfection so as to render the decree effective. For the purpose of determining whether there is ground for equitable interposition, the court may look to the real nature and character of the decree as it may appear in the light of surrounding circumstances.” Gay v. Parpart, 106 U.S. 679 at 699 (1882).

For the reasons stated, the order appealed from is affirmed and the suit is remanded to the chancellor for such further proceedings as may be necessary to effectuate his orders.

Affirmed.


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

text:
    FORREST CITY MACHINE WORKS, INC. v. Jimmy Ray LYONS
    93-487
    866 S.W.2d 372
    Supreme Court of Arkansas
    Opinion delivered November 22, 1993
    [Rehearing denied January 10, 1994]

      David Hodges, for appellant.

      Dick Jarboe and Murrey Grider, for appellee.
   Tom Glaze, Justice.

This is a second appeal involving these parties. Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990). This appeal involves commencement of an action under ARCP Rules 3 and 4(i) and how those rules relate to the tolling of a statute of limitations.

In.Lyons I, Jimmy Lyons had filed a products liability suit against Forrest City Machine Works on February 17, 1986. That suit alleged Lyons had sustained a foot amputation on October 3,1985, and the injury resulted from Forrest City Machine Works’ negligent design and manufacture of a grain buggy. Lyons further alleged that the company failed to warn or give proper instructions to persons using the device. Forrest City Machine Works moved to dismiss Lyons’ lawsuit on August 5, 1989, because Lyons had failed to obtain proper service on the company. On August 9, 1989, the trial court ruled Lyons’ service of process was not proper, and dismissed his complaint. We affirmed the trial court’s ruling on March 19, 1990. In that decision, we also held that the trial court correctly denied granting Lyons a continuance for the purpose of reissuing and effecting valid service. In so holding, we stated that, under ARCP Rule 4(i), if service of summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed without prejudice.

After the Lyons I decision, Lyons refiled his complaint on April 2, 1990, and Forrest City Machine Works again moved to dismiss. This time, Forrest City Machine Works defended, stating that the three-year statute of limitations [Ark. Code Ann. § 16-116-103 (1981)] had run from his October 3, 1985 date of injury. It further urged that, because Lyons had failed to obtain proper service to commence his action against Forrest City Machine Works, Lyons was time-barred when refiling his complaint on April 2, 1990 — over four years after his injury. The trial court denied Forrest City Machine Works’ motion, and this cause was subsequently tried to a jury. Lyons received a judgment in the sum of $36,500 from which Forrest City Machine Works now appeals. Forrest City Machine Works’ sole point for reversal is that Lyons’ cause of action filed on April 2, 1990, was barred by the controlling three-year statute of limitations. We disagree.

Arkansas’s saving statute, Ark. Code Ann. § 16-56-126 (1987), is applicable to the facts here. That provision, among other things, provides that if any action is commenced timely and the plaintiff suffers a nonsuit, the plaintiff may commence a new action within one year after the nonsuit. Under ARCP Rule 3, an action is commenced by the filing of a complaint with the clerk of the proper court, and the establishment of venue and the tolling of a statute of limitations is based on the date the complaint is filed. Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991). The commencement date, however, is subject to the plaintiff completing service within 120 days from the date of filing of the complaint, unless the time for service has been extended by the court under ARCP Rule 4(i). Id.; Cotton Properties v. Ken’s Disc. Bldg. Mat., 282 Ark. 521, 669 S.W.2d 469 (1984) (earlier decision involving the same rule except it then provided service was to be completed within 60 days).

In the present case, Lyons, in filing his first suit on February 17, 1986, was well within the applicable three-year statute of limitations period since Lyons’ injury occurred on October 3, 1985. As noted in Lyons I, the deputy sheriff’s summons reflected that service had been completed on Forrest City Machine Works on the same day that Lyons filed his complaint. In completing service on Forrest City Machine Works, Lyons effected the commencement date of filing his complaint for limitation purposes. Green, 304 Ark. at 488, 803 S.W.2d at 538; Cole, 304 Ark. 26, 800 S.W.2d at 414 (1990). However, as noted previously, the trial court, on Forrest City Machine Works’ motion, eventually dismissed Lyons action because of improper service. Nonetheless, that dismissal did not bar Lyons from refiling his suit later. This court has plainly stated that under the saving statute, § 16-56-126, a plaintiff, who commences a suit within the applicable statute of limitations and such suit is dismissed or nonsuited on a defendant’s motion, may refile the same action within the period of the “saving statute.” Carton v. Missouri Pac. RR., 295 Ark. 126, 747 S.W.2d 93 (1988). Here, § 16-56-126 allowed Lyons to refile his complaint within one year after his nonsuit, which occurred on August 9, 1989. Accordingly, Lyons refiled his complaint on April 2, 1990, which was well within the one-year period provided in § 16-56-126.

Forrest City Machine Works cites some sister state cases for the proposition that before a saving statute can be invoked, the previous proceeding must have constituted a valid action and that a mere filing of a complaint without proper service on the defendant does not comprise a valid action. See Johnson v. City of Raleigh, 389 S.E.2d 849 (N.C. App. 1990), cert. denied, 394 S.E.2d 176 (N.C. 1990); Acree v. Knob, 348 S.E.2d 716 (Ga. Ct. App. 1986). However, in interpreting our applicable rules and § 16-56-126, we have not construed them as narrowly as Forrest City Machine Works now suggests. For example, this court has permitted a plaintiff to have the benefit of the saving statute where this court on appeal reversed the trial court, holding the plaintiff had failed in his initial action to obtain proper service on the defendant. Cole, 304 Ark. 26, 800 S.W.2d 412. In so holding, we directed the plaintiff’s action be dismissed without prejudice. Id.

As we have already discussed, Arkansas’s rules pertaining to commencement of an action require only that the plaintiff complete service upon the defendant within 120 days from the filing of the complaint. If the plaintiff fails to complete service during that period, he or she may still request that the time be extended to complete service in order to protect the plaintiff against the running of a statute of limitations if that extension is requested within the 120 day period. In sum, to toll the limitations period and to invoke the saving statute, a plaintiff need only file his or her complaint within the statute of limitations and complete timely service on a defendant. A court’s later ruling finding that completed service invalid does not disinherit the plaintiff from the benefit of the saving statute. Our interpretation of § 16-56-126 meets with the liberal and equitable construction which must be given it in order to give litigants a reasonable time to renew their cause of action when they are compelled to abandon it as a result of their own act or the court’s. See Cole, 304 Ark. at 30, 800 S.W.2d at 415. Such construction is also consistent with this court’s rules which are designed to compel litigants to file their actions and either promptly initiate service on the responding parties or give the trial court some reason for needing additional time to complete service.

Because Lyons filed a timely action against and completed service upon Forrest City Machine Works in his prior lawsuit, the applicable limitations period was tolled, and he was thereby entitled to invoke § 16-56-126 when refiling his complaint. Accordingly, we affirm the trial court’s ruling that Lyons’ complaint was timely.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. This case in part concerns itself with an issue laid to rest by Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991). The issue is when is a cause of action commenced for purposes of the savings statute. We held in Green that simply filing a complaint did not commence an action for savings statute purposes, even though Ark. R. Civ. P. 3 does not exempt savings statute matters from its general pronouncement.

I agree with the opinion in this case but write to emphasize the point that filing a complaint under Rule 3 does not by itself determine commencement for purposes of limitation of actions or the savings statute. Service of process under Rule 4(i) must at least be attempted in order for commencement to occur and to toll the 120-day requirement for service. A strict reading of our Rule 3 might indicate otherwise.


author: Dqnald' L. Corbin, Justice.

text:
    SECURITY PACIFIC HOUSING SERVICES, INCORPORATED v. Johnny FRIDDLE and Gwen Friddle
    93-180
    866 S.W.2d 375
    Supreme Court of Arkansas
    Opinion delivered November 22, 1993
    [Rehearing denied January 10, 1994]

      Fred E. Bosshart, for appellant.

      Donald C. Tippett, for appellee.
   Dqnald' L. Corbin, Justice.

Appellant, Security Pacific Housing Services, Incorporated, appeals a judgment of the Crawford Circuit Court awarding appellees, Johnny and Gwen Friddle, $16,000.00 in compensatory damages, $12,000.00 in punitive damages, and $3,000.00 in attorney’s fees. Appellant asserts six points for reversal. Only the point relating to the award of attorney’s fees has merit, therefore we affirm the part of the judgment entered pursuant to the jury’s award of compensatory and punitive damages and reverse the part of the judgment awarding the attorney’s fee.

This case began with appellant’s complaint for replevin of a mobile home appellees purchased from a third party who assigned the contract to appellant. Appellees did not file a timely answer. However, the trial court granted their motion to extend the time to file an answer. Ultimately, appellees filed an answer and counterclaim for breach of contract and conversion. Immediately, prior to trial, appellant voluntarily dismissed with prejudice its claim for replevin; however, appellees’ counterclaim for breach of contract and conversion proceeded to jury trial. Without objection and despite the dismissal of the claim for replevin, appellant was permitted to assert a right to set-off relating to the debt remaining on the mobile home. The judgment was entered pursuant to the jury’s verdict on appellees’ counterclaim.

I. MOTION TO EXTEND TIME TO ANSWER

Appellant claims the trial court abused its discretion in granting appellees’ motion to extend time to answer because appellees failed to meet their burden of proving excusable neglect or other just cause. Appellant claims the trial court’s ruling was based on conjecture and speculation and that even if they had presented evidence to support their allegations, such evidence would not have risen to the level of excusable neglect or other just cause for extending the time within which to answer. Appellant further claims that if we are persuaded by its argument and conclude the trial court erred in extending the time within which appellees could answer, we must reverse the judgment awarded on appellees’ counterclaim because the timeliness of their counterclaim is linked with the untimeliness of their answer.

We do not address the merits of this argument as appellant waived it when it voluntarily dismissed its complaint with prejudice. Immediately prior to trial, appellant voluntarily moved to dismiss its complaint with prejudice. We observe that appellant specifically requested the dismissal to be with prejudice. Appellees agreed to the dismissal with prejudice and stated the counterclaim was still pending. The trial court then granted the dismissal with prejudice. The judgment states that appellant’s complaint was dismissed with prejudice.

It is a well-settled rule of law that a dismissal with prejudice is as conclusive of the rights of the parties as if there were an adverse judgment as to the plaintiff after a trial. Hicks v. Allstate Ins. Co., 304 Ark. 101, 799 S.W.2d 809 (1990). It is also a well-settled rule of law that a voluntary dismissal does not affect, but leaves for adjudication other claims such as counterclaims and cross-claims. Lemon v. Laws, 305 Ark. 143, 806 S.W.2d 1 (1991); Zurich General Accident & Liability Ins. Co. v. Smith, 209 Ark. 135, 189 S.W.2d 718 (1945). Thus, it is of no consequence whether the answer and counterclaim were filed timely as it is clear that appellant’s dismissal of the complaint with prejudice constituted a final adjudication on the merits at its own request. Any errors occurring prior to the dismissal with prejudice were therefore resolved against appellant at its own request. It is fundamental that, pursuant to the doctrine of invited error, an appellant cannot request a ruling by a trial court and then complain of that ruling on appeal. See Schmidt v. McIlroy Bank & Trust, 306 Ark. 28, 811 S.W.2d 281 (1991).

By requesting and receiving a dismissal of its claim with prejudice, appellant waived any rights to assert errors relating to that claim. To allow appellant first to voluntarily dismiss its complaint with prejudice and then to appeal asserting points of error relating to issues involved in the complaint (other than any issues concerning the dismissal itself, such as whether the dismissal was with or without prejudice) would be to allow an antinomy. It would give absolutely no effect to the words “dismissal with prejudice.”

II. DIRECTED VERDICT — CONVERSION

In its brief, appellant contends the trial court erred in denying its motion for directed verdict based on insufficient evidence that it converted appellees’ mobile home. The thrust of appellant’s argument is that appellant’s repossession of appellees’ mobile home was not a conversion because appellees were in default and there was no breach of peace. Appellant relies heavily on Ford Motor Credit Co. v Herring, 267 Ark. 201, 589 S.W.2d 584 (1979).

At the close of all evidence, appellant moved for a directed verdict stating that there was insufficient evidence by the counterclaimants and that “if there’s been a wrongful conversion because of default, we have sufficient evidence to prove a default.” ARCP Rule 50(a) mandates that a motion for directed verdict state the specific grounds therefor. Failure of a motion for directed verdict to comply with Rule 50’s requirement that the specific grounds relied on be stated is a sufficient basis for denial of the motion and for affirmance on appeal. Svestka v. First Nat’l Bank in Stuttgart, 269 Ark. 237, 602 S.W.2d 604 (1980). The requirement that the directed verdict motion state the specific grounds therefor is especially necessary when a case involves multiple issues, as does the instant case. Svestka, 269 Ark. 237, 602 S.W.2d 604.

Appellees’ counterclaim included claims for breach of contract and conversion. Appellant cites us to no authority, nor are we aware of any, standing for the proposition that appellees must prove their lack of default as an element of either of the two asserted claims. Obviously, appellant is confused as to who bore the burden of proving the default in this case. Clearly, appellees were not required to prove they were not in default as an element of their claim for conversion. It was appellant’s burden to prove the default as an element of the “defense” to rightful possession of the mobile home.

By interrogatory, the jury specifically found that appellees were not in default. Appellee Johnny Friddle’s testimony was somewhat confusing and the parties therefore stipulated as to the issues to be developed through his testimony. Accordingly, upon agreement by both counsel and without objection, the trial court informed the jury that Friddle’s testimony was that he was not in default and that he did not make any payments on the second forced placed insurance because he did not know nor did appellant ever inform him what the additional payments were for. The trial court also told the jury that through Friddle’s testimony, appellant would show that appellees had not made five payments in default on the second forced placed insurance policy. In support of its argument that appellees were in default, appellant complains of the stipulation of Johnny Friddle’s testimony to which it not only failed to object but expressly agreed. We have stated time and. time again that objections below aré required to preserve arguments for appellate review. Reynolds v. Shelter Mut. Ins. Co., 313 Ark. 145, 852 S.W.2d 799 (1993). The stipulated testimony is substantial evidence to support the jury’s verdict and finding that appellees were not in default. Because appellant agreed to the stipulation of Johnny Friddle’s testimony, appellant simply cannot complain of this now on appeal.

III. JUDGMENT N.O.V.

Appellant contends the trial court erred in denying its motion for judgment notwithstanding the verdict based on insufficient evidence and the passion and prejudice of the jury. Within this argument, appellant raises an additional basis on which the trial court should have granted its motion for judgment N.O.V. — the confusion of the jury as to the evidence presented and as to questions of law.

We observe that a motion for a directed verdict is a condition precedent to moving for a judgment notwithstanding the verdict. ARCP Rule 50(b); Willson Safety Prod. v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d 729 (1990). Since a motion for judgment notwithstanding the verdict is technically only a renewal of the motion for a directed verdict made at the close of evidence, it cannot assert a ground not included in the motion for directed verdict. See Dodson Creek, Inc. v. Fred Walton Realty Co., 2 Ark. App. 128, 620 S.W.2d 947 (1981) (citing Wright & Miller, Federal Practice & Procedure, Civil § 2537).

The record reveals that the only grounds upon which appellant moved for a judgment N.O.V. was on insufficient evidence. As the arguments concerning the jury’s confusion and passion and prejudice were not included in the motion for directed verdict and are raised for the first time on appeal, we do not address them in accordance with the foregoing authorities. As for the argument based on insufficient evidence, we have already determined there was substantial evidence to support the verdict. Thus, the trial court did not err in denying the request for a judgment notwithstanding the verdict.

IV. INSTRUCTION AS TO COMPENSATORY DAMAGES

Appellant challenges the instruction on compensatory damages as erroneous because it did not instruct the jury to deduct from the value of the mobile home immediately prior to the conversion, the balance owed appellant on the purchase contract. We do not reach the merits of this argument because it is raised for the first time on appeal. The record does not reveal that appellant objected to the instruction below. ARCP Rule 51 clearly requires that an objection to an erroneous instruction be made before or at the time the instruction is given. Acme Brick v. Missouri Pac. R.R., 307 Ark. 363, 821 S.W.2d 7 (1991).

V. INSTRUCTION AS TO PUNITIVE DAMAGES

Appellant contends the instruction on punitive damages was erroneous because it included the alternative paragraph of the model instruction to be used in a negligence case. As this was an intentional tort claim for conversion, appellant contends the instruction as to punitive damages in negligence cases was prejudicial error.

We do not reach the merits of this claim, because it is argued for the first time on appeal. ARCP Rule 51 clearly provides that an objection to an erroneous instruction is required before or at the time the instruction is given. Acme Brick, 307 Ark. 363, 821 S.W.2d 7. Moreover, we do not have a plain error rule. Lynch v. Blagg, 312 Ark. 80, 847 S.W.2d 32 (1993); Dotson v. Madison County, 311 Ark. 395, 844 S.W.2d 371 (1993).

VI. ATTORNEY’S FEE

In the instant case, the trial court awarded appellees an attorney’s fee of $3,000.00. Appellant claims the attorney’s fee cannot be justified pursuant to Ark. Code Ann. § 16-22-308 (Supp. 1993) because appellees prevailed on their claim in tort for conversion, not on their claim for breach of contract. We find merit to this argument. The recent case of Mercedes-Benz Credit Corp. v. Morgan, 312 Ark. 225, 850 S.W.2d 297 (1993) is controlling on this issue.

The general rule in Arkansas is well-settled that attorney’s fees are not awarded unless expressly provided for by statute or rule. Chrisco v. Sun Indus., 304 Ark. 227, 800 S.W.2d 717 (1990). See e.g., ARCP Rules 11 and 30. While section 16-22-308 allows for the award of attorney’s fees in certain civil actions, including actions for breach of contract, the decision whether to award a fee in such cases is a decision within the trial court’s discretion. Id. In determining the amount of a fee, the trial court should be guided by recognized factors such as those stated in Chrisco. Due to the trial court’s intimate acquaintance with the record and the quality of service rendered, we usually defer to the trial court’s superior perspective in awarding attorney’s fees and reverse an award only when there is an abuse of discretion. Id.

Before engaging in an analysis of the factors summarized in Chrisco however, there must first be a statute authorizing an award of attorney’s fees. While appellees included a claim for breach of contract in their counterclaim, and while section 16-22-308 allows for attorney’s fees in breach of contract cases, that statute does not allow attorney’s fees in tort actions. See Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992). We have recently held in a wrongful repossession case that when the prevailing party’s claim is based in tort, an award of attorney’s fees cannot be justified under section 16-22-308. Mercedes-Benz Credit Corp., 312 Ark. 225, 850 S.W.2d 297.

Consistent with our finding in Mercedes-Benz Credit Corp., we conclude appellees’ recovery was based primarily in the tort of conversion. We make this finding with full awareness that appellees’ counterclaim included a claim for breach of contract. Merely alleging a claim for breach of contract does not mean the jury awarded damages on that basis. The evidence presented focused on the wrongful repossession and the tort of conversion. The relatively large award of punitive damages indicates the jury awarded its verdict based on the tort claim.

The attorney’s fee must be reversed for lack of a statute authorizing such an award. The judgment is reversed and remanded to the trial court as to that effect. Finding no other errors, the remainder of the judgment is affirmed. See Mercedes-Benz Credit Corp., 312 Ark. 225, 850 S.W.2d 297.

Affirmed in part; reversed in part and remanded.


author: Robert L. Brown, Justice.

text:
    Genevive GREGORY v. ESTATE OF H.T. GREGORY
    93-202
    866 S.W.2d 379
    Supreme Court of Arkansas
    Opinion delivered November 22, 1993

      Daggett, Van Dover & Donovan, by: Timothy Steven Parker, for appellant.

      David Solomon, for appellee.
   Robert L. Brown, Justice.

This case involves the right of a widow, appellant Genevive Gregory, to elect to take against the will of her deceased husband, H.T. Gregory. The decedent had previously executed a reciprocal will and a separate contract not to revoke the wills with his first wife, Gladys Gregory. The two wills of the couple created testamentary trusts giving the six children of their marriage the estate of the surviving spouse. The issue before us in this appeal is who prevails between a second wife, in this case Genevive Gregory, electing to take her statutory share in the estate and the rights of the children as trust beneficiaries under the contract and reciprocal wills. The probate court concluded that the rights of the children were paramount, and from that decision Genevive Gregory appeals. We agree with the probate court and affirm its order.

On March 24, 1964, H.T. Gregory and his first wife, Gladys Gregory, executed “An Agreement to Make Reciprocal Wills and Not to Revoke Same.” The Agreement stated in part: “upon the death of either party the survivor shall not revoke his or her will without the consent of all the beneficiaries, devisees, and legatees.” Pursuant to this Agreement, H.T. Gregory and Gladys Gregory simultaneously executed reciprocal wills, which were attached and incorporated into the Agreement by reference. The Agreement was also referred to in the body of the wills. The wills were the same and stated that the residuary estate of the first to die was to be held in trust with the surviving spouse and their son, H.T. Gregory, Jr., as trustees and the couple’s six children as beneficiaries. Under that trust, the surviving spouse was to receive income for life and principal as deemed necessary by the trustees. Upon the death of the surviving spouse, the residuary property of that spouse was also to go into trust for the benefit of the children and the trust was to continue until the youngest surviving child reached the age of 25 and then the balance of the trust estate was to be distributed to the beneficiaries.

Gladys Gregory predeceased H.T. Gregory some time after 1964. Her property went into trust for the benefit of H.T. Gregory pursuant to the Agreement and her will. Thereafter, H.T. Gregory married appellant Genevive Gregory in the early 1970’s. On April 26, 1979, H.T. Gregory executed a codicil to his 1964 will, giving Genevive Gregory a life interest in the marital home. The codicil provided that the home would revert to the children at her death in accordance with the wills of H.T. Gregory and Gladys Gregory. H.T. Gregory’s children, the beneficiaries under both wills, consented to the 1979 codicil.

H.T. Gregory died on December 9, 1990, and is survived by Genevive Gregory, and by his six children, including his son, H.T. Gregory, Jr. His 1964 will and the 1979 codicil were admitted to probate that same month, and H.T. Gregory, Jr. was appointed executor of the estate. On January 15, 1991, Genevive Gregory filed an Election of Surviving Spouse to take her dower and homestead interests and her statutory allowances in the estate against H.T. Gregory’s will.

On March 13, 1992, an inventory of H.T. Gregory’s estate was filed listing the following assets: 37 acres of real estate around the homestead valued at $70,000, tools and implements valued at $250, two cars valued at $12,000, Certificates of Deposit valued at $35,000, and stock and an insurance policy valued at $7,589.28.

On September 2, 1992, Genevive Gregory filed a Petition for Partial Distribution of the estate. In that petition, she acknowledged possession of the marital home but demanded her dower and homestead rights and her statutory allowances to which she was entitled, according to the petition, by virtue of her election to take against H.T. Gregory’s estate. The petition also requested certain rents and profits from the land which comprised the homestead. In response to Genevive Gregory’s petition, H.T. Gregory’s children, as beneficiaries of the trust under both wills, stated that the rights of Genevive Gregory in relation to both H.T. Gregory’s will and the Agreement between H.T. Gregory and Gladys Gregory had to be determined prior to the distribution of any assets of the estate.

A hearing was held where the facts were not in dispute, and the probate court was presented with the single question of who prevails between the surviving spouse, Genevive Gregory, on the one hand and the six children on the other. The court subsequently filed its letter opinion and stated in part:

The language of the reciprocal Will reads—’’that if [he or she] should not survive me then I give devise and bequeath said property unto my trustee as hereinafter designated for the use and benefit of my beneficiaries as designated and set out in paragraph #4.” This language implies a present joint intention to make a gift of the collective property to the named beneficiaries effective upon the survivor’s death and binding as of the signing of the reciprocal Will. The reciprocal Will represented the sole attempt by the signatories to effect a distribution of their collective property according to their intent. The decedent had no right to revoke or change his Will without the consent of the beneficiaries. To do otherwise would allow the survivor to receive advantages under the contract and then breach it thereby defeating and defrauding the deceased wife and her beneficiaries.
Unless the husband has at some time during the marriage relation held a heritable estate of some kind—legal or equitable—in the property in question, no statutory rights could attach in the wife’s favor since a stream cannot rise higher than its source.

The probate court also found that it was “probable” that Genevive Gregory knew about the 1964 arrangements between Gladys Gregory and H.T. Gregory. Genevive Gregory then petitioned for clarification of whether the opinion also applied to personal property acquired after her marriage to H.T. Gregory. By letter, the probate court declined to clarify his opinion further.

Based on the reasoning in his letter opinion, the probate court denied the petition of Genevive Gregory to compel distribution of her homestead rights, dower interests, and statutory allowances and concluded that any rights of Genevive Gregory were subject to the prior rights of the six children under the 1964 will. The probate court specifically found that the order applied to property acquired by H.T. Gregory after his marriage to Genevive Gregory.

Arkansas recognizes reciprocal wills, whether joint or mutual, as a legitimate estate planning device to effect the intent of a married couple to dispose of collective property. See Smith v. Estate of Smith, 293 Ark. 32, 732 S.W.2d 154 (1987); George v. Smith, 216 Ark. 896, 227 S.W.2d 952 (1950). Generally, the surviving spouse is required to dispose of the collective property according to the joint will or mutual wills. See Janes v. Rogers, 224 Ark. 116, 271 S.W.2d 930 (1954). Arkansas also has a firmly entrenched public policy that the surviving spouse of a testator has the right to elect to take against her deceased spouse’s will:

(a) When a married person dies testate as to all or any part of his or her estate, the surviving spouse shall have the right to take against the will if the surviving spouse has been married to the decedent continuously for a period in excess of one (1) year.

Ark. Code Ann. § 28-39-401 (1987). This right in the surviving spouse to take an elective share is well settled. See, e.g., Lamb v. Ford, 239 Ark. 339, 389 S.W.2d 419 (1965). This court has also recognized that when a spouse elects to take against a will, it may be impossible for the decedent’s wishes to be followed. Clements v. Neblett, 251 Ark. 340, 372 S.W.2d 816 (1963).

The public policy set forth in § 28-39-401 is disallowed only in limited circumstances such as in the case when the electing spouse was married to the decedent for less than a year. The surviving spouse’s elective interest in the decedent’s estate vests immediately upon the spouse’s death, but it can vest only in property which the deceased spouse owned at the time of death. Maloney v. McCullough, 215 Ark. 570, 221 S.W.2d 770 (1949).

We are confronted with two competing public policies in this case — the right of a couple to contract to make mutual wills that are irrevocable and that dispose of both estates to third-party beneficiaries, and the right of a surviving spouse to take an elective share. The states are divided on this issue although the majority view appears to favor the third party beneficiaries. See Rubenstein v. Mueller, 19 N.Y.2d 228, 225 N.E.2d 540 (1967); Estate of Stewart, 69 Cal. 2d 296, 444 P.2d 337 (1968); Keats v. Cates, 100 Ill. App.2d 177, 241 N.E.2d 645 (1968); Tiemann v. Kampmeier, 252 Iowa 587, 107 N.W.2d 689 (1961); Lewis v. Lewis, 104 Kan. 269, 178 P. 421 (1919); Price v. Aylor, 258 Ky. 1, 79 S.W.2d 350.(1935); Estate of Chayka, 40 Wis.2d 715, 162 N.W.2d 632 (1968), aff’d 47 Wis.2d 102, 176 N.W.2d 561 (1970); contra, Shimp v. Huff, 315 Md. 624, 556 A.2d 252 (1989); Tod v. Fuller, 78 So.2d 713 (Fla. 1955); Patecky v. Friend, 220 Or. 612, 350 P.2d 170 (1960); In re Estate of Arland, 131 Wash. 297, 230 P. 157 (1924); see generally Surviving Spouses’s Right to Marital Share as Affected by Valid Contract to Convey by Will, 85 ALR4th 418 (1991). We have not decided this issue in Arkansas.

The salient parts of the 1964 Agreement and mutual wills are these:

1. The Agreement incorporates the terms of the two wills by reference.
2. The Agreement states that the two mutual wills of H.T. Gregory and Gladys Gregory will remain in effect and be irrevocable.
3. The Agreement states that any revocation of the wills must be approved by consent of the beneficiaries, devisees, and legatees.
4. The Agreement is binding upon the heirs of H.T. Gregory and Gladys Gregory.
5. Each will states that the residuary estate will go into trust for the benefit of the surviving spouse.
6. Each will states that the residuary estate of the surviving spouse will go into trust to be distributed to the six children as soon as practicable assuming all have attained age 25.

Accordingly, at Gladys Gregory’s death, her residuary property passed through her estate and immediately into the testamentary trust created by her will. It remained in trust while H.T. Gregory was alive with H.T. Gregory as co-trustee and sole beneficiary. At H.T. Gregory’s death, his residuary property passed through his estate and into a testamentary trust to be distributed immediately to the six children if they are all age 25 or older. There is no dispute between the parties over the existence of the Agreement, what the Agreement says, or over the intent of H.T. Gregory in disposing of his property.

The probate court relied on Rubenstein v. Mueller, supra, in deciding that the six children’s rights pursuant to the Agreement and mutual wills are superior to the elective rights of Genevive Gregory. In that case, joint wills were executed by Bertha Mueller and Conrad Mueller providing that the estate of the first to die would go to the survivor, and upon the survivor’s death the property would go to certain named beneficiaries. Nine months later, Bertha Mueller died, and Conrad Mueller received her entire estate. Conrad Mueller later married Martha Mueller. The Court of Appeals considered in part whether Martha Mueller had the right to a statutory elective share against the first will for the property received by Conrad Mueller. The court reasoned:

As to the collective property we feel that, on the death of one party to the joint will, the survivor was bound by the mutual agreement that the named beneficiaries should receive the property remaining when the survivor died.
[T]he agreement embodied in the joint will provides that “Upon the death of the second . . . the estate of the second ... is hereby bequeathed, devised and disposed of as follows.” The survivor’s right to full ownership of the collective property is transformed and modified by this joint agreement, effective upon the other’s death as stated above, into but an interest during the life of the survivor with power to use the principal.

19 N.Y.2d 228, 234, 225 N.E.2d 540, 543 (1967) (citations omitted). We agree with this reasoning.

We also agree with the probate court that the residuary property set out in the inventory of H.T. Gregory’s estate was subject to and encumbered by the superior contractual rights of the six children. This was clearly part of an estate plan effectuated between H.T. Gregory and Gladys Gregory to benefit themselves and then their children. The wills were not to be changed and would affect all of their property.

Genevive Gregory offered an inventory of a safety deposit box showing that some of H.T. Gregory’s certificates of deposit were dated after the second marriage. The two automobiles also had 1980 dates. There was no proof, however, that these items of personal property did not derive from the property collectively owned by H.T. Gregory and Gladys Gregory or, alternatively, the assets of H.T. Gregory in which Gladys Gregory had no interest. It was incumbent upon Genevive Gregory to make such a showing to support her argument that the Agreement and mutual wills had no effect on property acquired by H.T. Gregory after his second marriage. Without some proof that H.T. Gregory’s residuary estate was composed to some extent of after-acquired property which did not derive from the collective property of H.T. and Gladys Gregory, there is no basis for our reaching the issue of whether Genevive Gregory was entitled to her elective share in that property.

In summary, H.T. Gregory was bound by the 1964 Agreement and benefitted from it as the sole beneficiary of the testamentary trust of Gladys Gregory, Therefore, he was without power to change the Agreement. Inerson v. Dushek, 260 Ark. 771, 543 S.W.2d 942 (1976); Janes v. Rogers, supra. That the children had an interest in their parents’ property is not only evidenced by the Agreement and mutual wills but also by procedures followed by the parties in executing and consenting to the codicil in 1979. We view the transfer of H.T. Gregory’s property through his estate and into the testamentary trust as purely a matter of procedure. The important point is that the interest of the children in that property vested at the time of H.T. Gregory’s death. Certainly, Genevive Gregory can stand in no better position than her deceased husband with respect to property held in his estate, and her husband had agreed that his property would pass to the children at his death by way of the trust. The decision of the probate court was correct.

Affirmed.


text:
    David HARPER v. STATE of Arkansas
    CR 93-588
    865 S.W.2d 647
    Supreme Court of Arkansas
    Opinion delivered November 22, 1993

      Peter DeStefano, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, David Harper, appeals the denial of his Motion to Remove Detainer. He contends that the State surrendered custody over him to the federal government in 1985 and thereby waived the right to reclaim him for purposes of serving his state sentence. He further contends that the circuit court erred in its conclusion that it had no jurisdiction to grant his motion. Neither issue constitutes grounds for reversing the circuit court’s order, and we affirm.

On May 13, 1985, Harper was convicted in state court following a jury trial in Harrison on charges of possession of marijuana, second offense, and felon in possession of a firearm and sentenced to six years imprisonment on each charge, to run consecutively. He was also fined $5,000 on each charge.

On May 15, 1985, Harper was released to a U.S. Marshall in order to be taken to Ft. Smith and arraigned on federal charges of conspiracy to distribute marijuana, possession with intent to distribute marijuana, and interstate travel in aid of a racketeering enterprise. Boone County specifically required his return following the arraignment. He was arraigned on May 16, 1985, and returned to Harrison to the Boone County jail on May 17, 1985. On that date, he posted an appeal bond in connection with his appeal of the state convictions and was released from jail. On April 9, 1986, his state convictions and sentence were affirmed. Harper v. State, 17 Ark. App. 237, 707 S.W.2d 332 (1986).

After Harper made bond, he pled guilty to part or all of the federal charges in October 1985 and began serving a 10-year sentence in federal prison on February 7, 1986. From the time he made bond on May 17, 1985, in Boone County, the State apparently lost track of him until 1989 when the State notified the federal authorities to return Harper to Arkansas at the completion of his sentence in order for him to commence serving his state sentence. It is that notice which Harper sought to negate by his Motion to Remove Detainer filed on March 2, 1993.

The circuit court heard Harper’s motion on March 19, 1993, with Harper, who had been returned to the Boone County jail, appearing pro se. Following the hearing, the court denied his motion on the basis that it was moot because Harper was already back in state custody. The court also concluded that it had no jurisdiction to grant the relief requested or to correct the sentence due to the fact that 120 days had passed from the date of the appellate court mandate.

Harper first urges that the State abandoned jurisdiction over him to the federal authorities after he had begun serving his state sentence and thereby waived the right to reclaim him to serve the balance of his state sentence. We disagree. Harper was merely released to the U.S. Marshall “for an appearance in federal court,” and the circuit court so found. There was no relinquishment of custody as is evidenced by the fact that Boone County required Harper to be returned immediately following the federal arraignment. Harper then made an appeal bond after his return to the Boone County jail. Subsequent to that, he had no further contact with the state authorities until he was located in 1989 in federal prison. Under these circumstances, there was no surrender of Harper to federal jurisdiction or abandonment of the prisoner by the State. Nor was there a circuit court order that the state sentence should be served concurrently with the federal sentence. See Ark. Code Ann. § 16-90-109(b) (1987). Harper’s argument fails for lack of a factual foundation.

For his second point, Harper maintains that the circuit court had jurisdiction to grant the relief requested; yet, the court refused to do so, in part, on grounds that it lacked jurisdiction. The point has no merit. First, the State only notified the federal authorities that Harper should be returned to Arkansas custody after completion of his federal sentence. That notice is not a detainer as defined by state law. Ark. Code Ann. § 16-95-101 et seq. (1987); Hicks v. Gravett, 312 Ark. 407, 849 S.W.2d 946 (1993). A detainer is placed on a prisoner in another jurisdiction for purposes of having that prisoner return to the claiming jurisdiction to stand trial on pending charges. Id. The definition does not include a notice that the prisoner has a sentence to serve in a foreign jurisdiction.

Moreover, the circuit court correctly concluded that it had lost jurisdiction to correct a sentence imposed in an illegal manner because the passage of 120 days had occurred from the date of the appellate court mandate. Ark. Code Ann. § 16-90-111 (Supp. 1993); Kelly v. Washington, 311 Ark. 73, 843 S.W.2d 797 (1992). But even had the court considered Harper’s motion to be in substance a petition for writ of habeas corpus, there was no factual basis to grant the writ as already discussed.

The circuit court correctly denied the motion.

Affirmed.

       The circuit court stated in its order'denying the motion that the appeal bond was posted in Sebastian County, but this statement was in error as it conflicted with both Harper’s allegations in his Motion to Remove Detainer and the prosecutor’s recitation of Harper’s procedural history.


text:
    Albert Lee JOHNSON v. Hon. Fred D. DAVIS, Circuit Judge, Circuit Court of Jefferson County, Arkansas; and State of Arkansas, et al.
    93-1166
    866 S.W.2d 384
    Supreme Court of Arkansas
    Opinion delivered November 22, 1993
    Albert Lee Johnson, pro se.
    No response.
   Per Curiam.

The petitioner, Albert Lee Johnson, appears pro se and requests that we order the circuit judge, Fred D. Davis, to hear his complaint regarding parole eligibility which was filed on January 25, 1993. On August 17, 1993, Johnson moved for a trial setting. He states that the circuit judge has not set the matter down for trial. There has been no response from the respondents.

We first observe that the record before us does not indicate whether the circuit judge has been served by Johnson with the complaint and summons. Without service, the circuit judge may well not even know that the complaint has been filed. Certainly, there is no obligation to answer or set this matter down for trial if the matter has not come to his attention.

Secondly, we decline to force the circuit judge to set this matter down for trial, assuming the judge has been properly served. We have stated in the past that effective control of the docket is a matter for the trial judge. See, e.g., Insurance from CNA v. Keene Corp., 310 Ark. 605, 839 S.W.2d 199 (1992); Brown v. Wood, 257 Ark. 252, 516 S.W.2d 98 (1974). We are reluctant to interfere with the circuit judge’s control of his docket under these facts.

The request that we waive a federal requirement for habeas corpus is frivolous on its face.

The petition is denied.