author: Robert L. Brown, Justice. Annabelle Clinton Imber, Justice,

text:
    Jerry G. NOLAND and Anita Delores Shaver, Trustees of the Wesley E. Noland Irrevocable Trust, and Jerry G. Noland, Anita Delores Shaver, and Helen Lorraine Hooten, Beneficiaries of the Wesley E. Noland Irrevocable Trust v. Claude NOLAND
    96-1555
    956 S.W.2d 173
    Supreme Court of Arkansas
    Opinion delivered December 4, 1997

      Lingle Law Firm, by: James G. Lingle, for appellants.

      Davis & Watson, P.A., by: Charles E. Davis, for appellee.
   Robert L. Brown, Justice.

This case raises two issues: (1) whether the trial court erred in shifting the burden of proof to appellants Jerry G. Noland, Anita Delores Shaver, and Helen Lorraine Hooton in an undue-influence case for the reason that they were beneficiaries of a trust and procured its creation; and (2) if so, whether the appellants proved beyond a reasonable doubt that the settlor of the trust, Wesley E. Noland, was of sound mind and free of undue influence when he created the trust. The trial court found that Wesley Noland was of unsound mind and not a free agent when he executed the trust. Because we conclude that the trial court clearly erred in its finding, we reverse the court’s order and remand for appropriate orders to be entered.

On January 21, 1974, Wesley E. Noland, and his wife, Elsie Noland, established by deed a joint tenancy with right of survivor-ship in eighty-five acres of farmland (the farm) located in Benton County. Under the joint tenancy, Wesley Noland, Elsie Noland, Jerry Noland, and Claude Noland each held an undivided interest in the farm. Subsequent to Elsie Noland’s death in June 1990, Wesley Noland, Jerry Noland, and Claude Noland each held an undivided one-third interest in the remaining eighty-two-and-one-half acres.

On September 27, 1991, at the age of 86, Wesley Noland created the Wesley E. Noland Irrevocable Trust and named Jerry Noland and one of his two daughters, appellant Anita Shaver, as trustees. Wesley Noland funded the trust by deeding his undivided one-third interest in the farm to the trust and by conveying all of his personal property located in his residence on the farm to the trust. That same day, Jerry Noland also deeded his undivided one-third interest in the farm to the trust. The trust instrument provided that the trust would care for Wesley Noland for the balance of his life, and upon his death, the remainder of the trust property was to be distributed, in equal shares, to Jerry Noland, Anita Shaver, and his remaining daughter, appellant Helen Hooton subject to Claude Noland’s life estate in part of the property. The trust provided that in the event Wesley Noland predeceased Claude Noland, Claude Noland would receive a life estate in the residence, barn, and corral located on the farm. The effect of the trust’s creation and the two deeds on Jerry Noland was that his undivided one-third interest in the farm with right of survivorship to the whole was converted into a two-ninths interest in fee, as a beneficiary of the trust. Anita Shaver and the remaining daughter, Helen Hooton, would also be beneficiaries of a two-ninths interest in the farm, subject to the two fife estates. Wesley Noland died on August 12, 1992.

On January 29, 1993, Claude Noland filed a petition to set aside the trust and warranty deed executed by his father. The petition alleged that Wesley Noland lacked the mental capacity to execute the trust and warranty deed and that he was unduly influenced by Jerry Noland and Anita Shaver because they caused the trust and warranty deed to be prepared and took their father to an attorney for the purpose of signing the documents. The petition also alleged that the conveyance was invalid because his father only owned an undivided one-third interest in the farm as a joint tenant with right of survivorship and that he could not destroy the joint tenancy.

On September 20, 1994, after hearing a considerable amount of conflicting testimony on the subject of undue influence and Wesley Noland’s mental capacity, the trial court issued its order. The court found that Jerry Noland caused the irrevocable trust and deed to be prepared and, because of this, the burden shifted to the appellants to prove beyond a reasonable doubt that Wesley Noland had the mental capacity and free will to execute the trust and warranty deed. The court then stated:

Though the testimony is in considerable dispute, there is certainly evidence to indicate that Wesley’s physical strength and mental condition were such as to put folks who knew him on notice that he had some problems both mentally and physically.
The Court is of the opinion that the defendants Jerry Noland and Anita Shaver are fine people, fine citizens and probably did not set out to procure the making of the trust and warranty deed, but in my opinion, in view of the law cited above, it must be found that the defendants did not carry their burden of proof by showing beyond a reasonable doubt that Wesley had both such mental capacity and such freedom of will and action as are requisite to render the trust and warranty deed legally valid.

The court concluded that the trust and warranty deed executed by Wesley Noland should be set aside.

The Court of Appeals affirmed the trial court’s order by a tie vote. Noland v. Noland, 55 Ark. App. 232, 934 S.W.2d 940 (1996). We granted appellants’ petition to review pursuant to Ark. Sup. Ct. R. l-2(e)(i).

I. Mental Capacity

Because we reverse this case on the basis of Wesley Noland’s mental capacity and free agency, we need not address the issue of whether the burden of proof was improperly shifted to the appellants. We assume for purposes of this analysis, as the trial court found, that at least one of the appellants, Jerry Noland, procured the Wesley E. Noland Trust and that the appellants all benefitted from this procurement. With this assumption, a presumption that the trust was the result of undue influence arises under our caselaw and the burden of proof then shifts to the proponents of the trust to prove beyond a reasonable doubt that Wesley Noland had both the mental capacity and freedom of will to render the trust legally valid. See Looney v. Estate of Wade; 310 Ark. 708, 839 S.W.2d 531 (1992); Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Park v. George, 282 Ark. 155, 667 S.W.2d 644 (1984); Abel v. Dickinson, 250 Ark. 648, 467 S.W.2d 154 (1971); Short v. Stephenson, 238 Ark. 1048, 386 S.W.2d 501 (1965); Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955); McDaniel v. Crosby, 19 Ark. 533 (1858).

The trial court concluded that the appellants did not meet their burden and specifically found that Wesley Noland “had some problems both mentally and physically.” Thus, the issue for this court to decide on de novo review is whether the trial court’s finding on mental capacity and undue influence was clearly erroneous. Holaday v. Fraker, 323 Ark. 522, 915 S.W.2d 280 (1996); Welchman v. Norman, 311 Ark. 52, 841 S.W.2d 614 (1992). We note in this connection that deference is generally accorded to the superior position of the chancellor to judge the credibility of the witnesses. Holaday v. Fraker, supra; Riddick v. Street, 313 Ark. 706, 858 S.W.2d 62 (1993).

We turn first to the proof offered by the appellants that Wesley Noland was mentally competent for purposes of executing the trust on September 27, 1991. In Daley v. Boroughs, 310 Ark. 274, 283-84, 835 S.W.2d 858, 864 (1992), this court discussed at length the test for determining mental capacity:

The rule has been generally expressed that sound mind and disposing memory, constituting testamentary capacity, is (a) the ability on the part of the testator to retain in memory without prompting the extent and condition of property to be disposed of; (b) to comprehend to whom he is giving it; and (c) to realize the deserts and relations to him of those whom he excludes from his will.
Testamentary capacity means that the testator must be able to retain in his mind, without prompting, the extent and condition of his property, to comprehend to whom he is giving it, and relations of those entitled to his bounty.

Id. (citations omitted), quoting Hiler v. Cude, 248 Ark. 1065, 1076, 455 S.W.2d 891, 897-98 (1970).

Complete sanity in the medical sense is not required if the power to think rationally existed at the time the will was made. Daley v. Boroughs, supra; Abel v. Dickinson, supra; Hiler v. Cude, supra. Furthermore, our own law is clear that despite any mental impairment, the testator may execute a will if he is experiencing a lucid interval. Daley v. Boroughs, supra; Hiler v. Cude, supra. The time to look at a testator’s mental capacity is at the time the will is executed. However, proof may be taken as to the testator’s condition both before and after the will’s execution as being relevant to his condition at the time the will was executed. Daley v. Boroughs; Rogers v. Crisp, 241 Ark. 68, 406 S.W.2d 329 (1966).

This court has upheld mental competency at the time of the execution of a will even in the wake of evidence of some mental deterioration. See, e.g., Daley v. Boroughs, supra (affirming trial court’s finding of capacity despite medical records providing that testator was confused, disoriented, and needed to be restrained during the three days prior to the execution of the will); Abel v. Dickinson, supra (affirming trial court’s decision to probate will made by an elderly testatrix; the attorney and her physician testified as to competence despite the fact her physical condition had been “going downhill” at the same time); Thiel v. Mobley, 223 Ark. 167, 265 S.W.2d 507 (1954) (reversing trial court’s finding of a lack of capacity despite proof that testatrix was often under the influence of opiates that she had been taking in connection with pain from cancer). But see, e.g., Short v. Stephenson, supra, (reversing trial court’s finding of competency when, months prior to execution of the will, testator failed to recognize his only living relative on one occasion and developed problems with his memory).

In reaching our decision in this case, three pieces of evidence seem particularly significant. The first is the deposition testimony of Dr. John Huskins, Wesley Noland’s physician at Rogers Memorial Hospital, who opined that Wesley was mentally competent on September 27, 1991, because he had sufficient mental capacity to know the extent and condition of his property; to know his children; and to know that he was disposing of his property to them. Secondly, on September 7, 1991, Jerry Noland videotaped an interview with his father, during which time Wesley Noland identified his four children and expressed a desire that each child share equally in his farm property. Wesley Noland also stated that he would be willing to sign a new deed that would give his daughters, Anita Shaver and Helen Hooton, an interest in the farm, and that he would not have signed the 1974 deed had he understood that they would never receive any interest. He further stated that he wanted Jerry Noland to disburse the funds taken from his bank account and his certificates of deposit equally among his children after his death.

Finally, Jerry Noland videotaped Wesley Noland’s execution of the trust and deed on September 27, 1991, in the lawyer’s office. Jerry Noland testified that he contacted an attorney, Ernest Lawrence, and that he received a copy of the trust and deed directly from Lawrence’s law office. He then explained the documents to his father before the September 27, 1991 meeting. Ernest Lawrence also testified that he prepared the trust and deed in question and that he had had no contact with Wesley Noland prior to September 27, 1991. However, after interviewing Wesley Noland on that date, he concluded that Wesley Noland possessed the requisite mental competency and free will to execute the documents.

The following colloquy between Ernest Lawrence and Wesley Noland on September 27, 1991, as abstracted by the appellants, is illustrative of Wesley Noland’s mental ability and understanding at the time he executed the trust and deed. After Wesley Noland identified his children for the lawyer, the interview continued:

LAWRENCE: What we’re doing today, Mr. Wesley, is how we can figure out — how we can get the girls included. Now is that what you want to do?
WESLEY: Yes. I want every kid to have its part, whatever is coming to them.
LAWRENCE: What kind of property do you have, Wesley?
WESLEY: I own 82 1/2 acres, I guess. The road over here took out 2 1/2 acres. I had 85 acres. But there was more than that. I borrowed the money off you and somebody else to get that. That’s where I stay.
I told you that I remember signing that deed sometime back but that I really didn’t realize what I was doing. We discussed that the deed placed title to the 82 1/2 acres in the names myself and my two sons. There was 85 whenever I sighed that. That really was not what I wanted to have happen. I want my kids to have equal share after I’m gone from here.

Other questioning by the lawyer emphasized that Claude Noland would keep his undivided one-third interest in the farm and that the remaining two-thirds interest in the trust would be used for the care and benefit of Wesley Noland for life. He further explained that Claude Noland would have a life estate in the home, barn, and corral after his father’s death. Wesley Noland indicated that he understood the basic arrangement and reiterated that he wanted his two daughters to share in the farm.

On the other hand, Claude Noland challenges his father’s competency and points to the fact that Wesley Noland signed the first copy of the trust agreement as “Wesley E. Wesley.” He also testified that on the evening of September 27, 1991, his father told him he had made out a “will” that day. In addition, Wesley Noland apparently told his brother, Austin Noland, during this same time period that he did not know what he had signed.

Much testimony was presented by both parties about Wesley Noland’s actions before and after he signed the trust as bearing on the soundness of his mind. Claude Noland, for example, testified to numerous events that, to his mind, brought his father’s mental capacity into question. A compendium of those events follows: Wesley Noland would leave the water hydrant running.and forget to water the dogs; he once purportedly caught himself on fire while attempting to thaw out a frozen water tank in 1989; he had difficulty dialing telephone numbers properly in connection with the family business for the last five to seven years of his life; he would wander off and be found alone in the woods or sitting by the road; he would forget to turn off the burners on the stove after making oatmeal or coffee; he would do laundry at 2:00 in the morning; he expressed a desire to be with another woman during his wife’s funeral; and he would urinate in the front yard in front of passing vehicles. Claude Noland also testified that he found feces on the bathroom floor in August or September 1991 and that his father had difficulty dressing himself. On cross-examination, Claude admitted that he believed his father spent too much time gambling and playing dominoes in the local pool hall and not working.

Other witnesses, including a home-care nurse, confirmed that Wesley Noland had proposed marriage to them following his wife’s death. Some witnesses confirmed that he would wander off looking for Claude and that he often repeated himself and once told a tale about wild dogs being in the area.

The appellants countered with testimony about Wesley Noland’s sound mind. Neighbors who brought lunch to Wesley Noland after his colon surgery in December 1991 testified to his mental competency and to the fact that Claude verbally abused his father. Appellant Helen Hooton recorded on audiotape one occasion when Claude appeared to be cursing his father. Jerry Noland testified that Wesley Noland was interested in conveying an interest in the farm to his two daughters as early as the mid-eighties. Because of this, he and his two sisters contacted an attorney, John Scott, in 1984. Anita Shaver confirmed this and stated that John Scott told them nothing could be done to sever the joint tenancy created in 1974 without Claude Noland’s involvement.

We begin by focusing on the date of execution of the deed and trust, which was September 27, 1991. On that date, it is clear, as the videotape substantiates, that Wesley Noland knew his property and his heirs and further knew that he was signing documents to treat his children equally. See Daley v. Boroughs, supra. True, he may not have understood the niceties of the operation of a trust versus that of a will or precisely how the trust agreement would be carried out. His formal education was minimal; testimony was that he was not educated beyond the third grade. But we do not view those factors as evidence of an unsound mind. Nor do we consider the fact that he first signed his name in error as bearing on his lucidity. There is no question that at age 86 Wesley Noland was failing in some respects. Still, again, we are convinced that he knew he was taking steps to include his daughters as beneficiaries of the farm at the time of his death when he created the trust on September 27, 1991. Indeed, Claude Noland offers nothing to counter this pivotal point, other than to emphasize the laundry list of Wesley Noland’s eccentricities.

We acknowledge that proof of Wesley Noland’s condition before and after the trust’s execution may be relevant to his condition at the time the trust and deed were signed. Daley v. Boroughs, supra; Rogers v. Crisp, supra. Nonetheless, proof of Wesley Noland’s eccentric behavior and deterioration of his bodily functions do not equate to incompetency. Much of what was offered as evidence of incompetency falls more readily into the category of weakened faculties perhaps, but not unsoundness of mind. We are mindful in this regard of commentary in Thompson on Wills, which we have quoted in the past with approval:

Mere age is not necessarily inconsistent with testamentary capacity. “Indeed, the mental faculties may be weakened and impaired by old age without destroying such capacity. The mere fact that an aged testator’s memory is failing, or that his judgment is vacillating, or that he is becoming eccentric, or that his mind is not as active as formerly •— these things do not invalidate his will if it was fairly made and he was free from undue influence. While age is not of itself a disqualification, yet it excites vigilance to see if it is accompanied with capacity.” — Thompson on Wills, § 62, pp. 88-89.

Pernot v. King, 194 Ark. 896, 910, 110 S.W.2d 539, 545 (1937). Again, the videotaped event on September 27, 1991, manifestly depicts a man who essentially knew what he was doing in signing the documents. Daley v. Boroughs, supra; Hiler v. Cude, supra. As in the case of Thiel v. Mobley, supra, here there is a complete absence of proof that Wesley Noland was not lucid at the time he signed the trust and deed. In the Thiel case, as in the instant case, we reversed the trial court and upheld the will on grounds of both soundness of mind and free agency.

We conclude that the trial court clearly erred in finding that the appellants failed to establish soundness of mind beyond a reasonable doubt.

II. Free Will

We turn next to the issue of whether the appellants met their burden of proof concerning Wesley Noland’s free agency on September 27, 1991.

This court has stated that the questions of undue influence and mental capacity are so closely interwoven that they are sometimes considered together. In Re Conservatorship of Kueteman, 309 Ark. 546, 832 S.W.2d 234 (1992); Rose v. Dunn, supra. In Orr v. Love, supra, we described the requisite proof to establish undue influence:

The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property.

Orr v. Love, 225 Ark. at 510, 283 S.W.2d at 670. See also In Re Estate of Davidson, 310 Ark. 639, 839 S.W.2d 214 (1992).

The converse of this is also true. For the appellants to prove free agency, they must show that Wesley Noland executed the trust and deed on September 27, 1991, without fear or coercion or any intimidation that would deprive him of free agency. The videotape of the signing of the instruments in the lawyer’s office lasts approximately 45 minutes. It depicts Ernest Lawrence explaining in detail to Wesley Noland what is transpiring with the trust and deed and his steps to make certain that this is what Wesley Noland wants to do. Also present at the meeting in Lawrence’s office are a staff person who witnessed the signing; Jerry Noland, who videotaped the session; and Anita Shaver. There is no question but that Jerry Noland and Anita Shaver contacted Ernest Lawrence about drafting the instruments, briefed their father on what would occur, and brought him to the lawyer on September 27, 1991. The issue for us to address, however, is not whether there were suggestions made to Wesley Noland by his heirs, but whether there was undue influence.

Viewing the videotape, we can ascertain nothing that denigrates Wesley Noland’s freedom to act in Ernest Lawrence’s office. He appears to know what he wanted to accomplish — equality among his children, which meant including his daughters as heirs to the farm. Steps were taken to prove that everything was done according to Hoyle, with attorney explanations and a visual and audio record of what transpired. Moreover, this is not a case where a new will disinherits one heir and benefits others. Here, Claude Noland maintained an undivided one-third interest in the farm and acquired as well a life interest in the residence, barn, and corral, although his right of survivorship in the farm was lost.

The dissenting opinion makes much of the heavy burden of proof and our standard of review while acknowledging that, in some cases, reversals are appropriate. This is such a case, as was Thiel v. Mobley, supra. While, admittedly, in Thiel the shifting burden of proof was not addressed by this court, we reversed the trial court’s twin findings that the testatrix’s will in favor of her children and not her husband was executed without the requisite capacity and was the result of undue influence. In doing so, we emphasized that despite conflicting proof of her capacity, there was no evidence that she did not sign the will during a lucid moment or that she was the victim of a malign influence. Those are precisely the issues confronting us in the case at hand.

We have stated that a finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996); RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). Such is the situation in the case at hand. We conclude that the trial court clearly erred in its finding that Wesley Noland did not act. freely and with sound mind when he signed the deed and trust. We reverse the order of the trial court and remand for orders consistent with this opinion.

Reversed and remanded.

Newbern, Corbin, and Imber, JJ., dissent.

Annabelle Clinton Imber, Justice,

dissenting. While the majority does not decide whether the trial court correctly shifted the burden to the trust’s proponent, it nonetheless concludes that if the burden of proof did shift, the trial court was clearly erroneous in finding that the proponent failed to meet his burden to prove Wesley Noland’s mental capacity beyond a reasonable doubt. I cannot join this conclusion.

Assuming for purposes of capacity analysis, as does the majority, that Jerry Noland procured and benefitted from the 1991 trust instrument, the burden shifted to him to prove beyond a reasonable doubt that Wesley Noland possessed the requisite testamentary capacity. This shifting burden marks a significant departure from what is required from a proponent in a “typical” will-contest case:

Obviously, a proponent of a will, who is a beneficiary and who drafted or caused to be drafted a will, does not enjoy the usual legal advantages given to a document otherwise drawn.
[B]ecause proof of mental capacity and the lack of undue influence must be proved beyond a reasonable doubt, those advantages, which make it relatively easy to admit a will to probate, obviously do not exist.

Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979). While capacity at the time of the will’s execution is the extent of our inquiry, the testator’s condition either before or after the time of making the will is relevant as indicating the testator’s condition at the time of signing the instrument. Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992). One commentator has explained that “ [i]n order to place the condition of testator’s mind clearly before a jury or a court it is necessary to receive evidence of his condition before and after the time of the execution of the will. . . [t]his can, as a matter of fact, often be determined only from a consideration of his conduct, behavior, methods of thinking, and the like, extending over a period of time.” 3 Page on the Law of Wills §- 29.58 (1961 & Supp. 1997).

Here, the majority acknowledges that the trial court heard “a considerable amount of conflicting testimony” on the subject of Wesley Noland’s mental capacity. However, the majority primarily emphasizes that, in its view, the videotaped execution of the trust and deed demonstrates that 'Wesley Noland possessed the requisite capacity on September 27, 1991. In support of its position that this videotape shows a man “who essentially knew what he was doing,” and that there was “was a complete absence of proof that Wesley Noland was not lucid” at the time of execution, the majority provides citations to cases where the burden had not shifted to the proponents to prove capacity beyond a reasonable doubt. See Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992) (affirming trial court’s determination that the contestant failed to meet his burden of proving lack of capacity by a preponderance of the evidence); Hiler v. Cude, 248 Ark. 1065, 455 S.W.2d 891 (affirming trial court’s finding that the contestant failed to prove lack of capacity; trial court did not err in declining to shift burden to proponents); Thiel v. Mobley, 223 Ark. 167, 265 S.W.2d 507 (1954) (reversing trial court’s finding that the contestant had established lack of capacity). By contrast, in cases where the burden shifted (or should have shifted) to the proponent to prove capacity and lack of undue influence beyond a reasonable doubt, I can find no reported case where this court has ever reversed the trial court’s finding that the proponent failed to meet her burden. See Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992) (affirming trial court’s finding that proponent failed to establish capacity and lack of capacity and undue influence beyond a reasonable doubt); Park v. George, 282 Ark. 155, 667 S.W.2d 644 (1984) (trial court erred in failing to shift burden to proponents; will under consideration declared void); Smith v. Welch, 268 Ark. 510, 597 S.W.2d 593 (1980) (proponents failed to meet burden of proving capacity and lack of undue influence beyond a reasonable doubt); Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979) (proponents failed to meet burden of proving capacity beyond a reasonable doubt); Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955) (reversing trial court’s determination that proponents had rebutted presumption of undue influence beyond a reasonable doubt); Warner v. Warner, 14 Ark. App. 257, 687 S.W.2d 856 (1985) (affirming trial court’s finding that proponent failed to prove lack of undue influence beyond a reasonable doubt); Oliver v. Griffe, 8 Ark. App. 152, 649 S.W.2d 192 (1983) (affirming trial court’s finding that proponent failed to prove capacity and lack of undue influence beyond a reasonable doubt); Neal v. Jackson, 2 Ark. App. 14, 616 S.W.2d 746 (1981) (proponents failed to meet burden of proving capacity and lack of undue influence beyond a reasonable doubt).

While not intimating that this court could never reverse a trial court’s determination in this regard, I think that the trial court had considerable evidence before it concerning Wesley Noland’s deteriorating mental state, both before and after the execution of the trust, from which to glean a reasonable doubt as to his capacity at the time of execution. At the very least, I am not prepared to say that this determination was clearly erroneous. In my opinion the majority has substituted its view of the evidence for that of the trial court’s, without due consideration to the proponent’s heavy burden of proof, the trial court’s superior position to weigh evidence and evaluate credibility, and our applicable standard of review. For these reasons, I respectfully dissent.

Newbern and Corbin, JJ., join this dissent.

       After the original conveyance, two-and-one-half acres were condemned for the construction of a state highway.

       We draw no distinction between the mental competency and free will necessary to execute either a will or a trust which takes effect, in part, at date of death. Rose v. Dunn, supra.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Janette SANDERS and Jerry Sanders d/b/a Sanders-2 v. BRADLEY COUNTY HUMAN SERVICES PUBLIC FACILITIES BOARD and Bradley County, Arkansas
    97-110
    956 S.W.2d 187
    Supreme Court of Arkansas
    Opinion delivered December 4, 1997

      Michael R. Davis, for appellants.

      Haley, Claycomb, Roper & Anderson, by: Bruce Anderson, forappellees.
   Robert L. Brown, Justice.

Appellants in this case, Janette Sanders and Jerry Sanders d/b/a Sanders-2 (the Sanderses), appeal a summary-judgment order in favor of appellee Bradley County, Arkansas. Bradley County had denied liability on a contract where architectural services had been rendered by the Sanderses. The amount claimed by them was $24,025.00. The Sanderses contend that the Bradley County Human Services Public Facilities Board, with whom their contract was made, is not a separate body politic but rather is an agent of Bradley County. Moreover, they argue that Bradley County is estopped from denying liability on the contract and that, in any event, Bradley County has been unjustly enriched by the Sanderses’ work. We hold that the points raised by the Sanderses are without merit, and we affirm.

On April 17, 1996, the Sanderses filed a complaint in Bradley County Circuit Court against the Bradley County Human Services Public Facilities Board (Facilities Board) and appellee Bradley County. The complaint alleged that the Facilities Board, which had been created by the Bradley County Quorum Court, solicited bids from architects in May 1994 for the purpose of designing a proposed building in Bradley County that would provide office space for the Department of Human Services. According to the complaint, the Facilities Board accepted the Sanderses’ bid, and on June 1, 1994, the Facilities Board and the Sanderses signed a written agreement for architectural services.

The Sanderses alleged that after they performed the work, Bradley County was unsuccessful in its efforts to obtain financing for construction of the budding. They asserted that, although they demanded payment from both the Facilities Board and Bradley County, payment was not forthcoming. They acknowledged, however, that payment in the amount of $1,180.00 was received from Bradley County as a reimbursement for costs. They asked for judgment against both Bradley County and the Facilities Board in the amount of $24,025.00 plus attorney fees.

In its answer, the Facilities Board admitted that it was created by the Bradley County Quorum Court pursuant to Ordinance No. 262. The Facilities Board also admitted that it entered into a contract with the Sanderses but asserted that the Sanderses knew the contract was contingent on funding for the proposed project, which never occurred. The Facilities Board further stated that the Sanderses were aware that the Facilities Board had no income or assets and that the ability of the Facilities Board to pay was based on its ability to obtain financing through a direct loan or bond issue. The Facilities Board acknowledged that the Sanderses performed certain architectural services. The answer finally stated that the Facilities Board was dissolved by Ordinance No. 294 of the Bradley County Quorum Court on October 10, 1995.

In its separate answer, Bradley County admitted that the Quorum Court created the Facilities Board and further admitted that the Sanderses entered into a contract with the Facilities Board. Bradley County asserted, however, that the contract was entered into in the name of the Facilities Board, not the County, and that the County did not incur any liability as a result of the Facilities Board’s action.

Bradley County next moved for summary judgment on the same ground — that it did not enter into the architectural agreement with the Sanderses. The County claimed that the Facilities Board was a body politic separate and apart from the Quorum Court and that the Facilities Board, which had been dissolved, did not have the authority to obligate the County to a contract. Attached to the summary-judgment motion was an affidavit from LaVern Rice, the Bradley County Judge. In the affidavit, Judge Rice averred that the Facilities Board was indeed a body politic separate and apart from the Quorum Court; that the members of the Facilities Board were not members of the Quorum Court; that Ordinance No. 262 did not empower the Facilities Board with the ability to obligate the County; that the Quorum Court was not consulted about the contract; and that the County Judge did not become aware of the contract until the Sanderses made demand on the County for payment.

In their response to the motion for summary judgment, the Sanderses offered no countervailing proof. Rather, they contended only that the Facilities Board was a creation of Bradley County and that, if it was dissolved, the Board’s actions should be imputed to the County.

A hearing was held, and the trial court granted Bradley County’s motion for summary judgment. The trial court noted that it was undisputed that Bradley County did not make an appropriation to cover the additional services sued for by the Sanderses, and that pursuant to Ark. Code Ann. § 14-20-106 (1987), the County could not be held liable for a contract under such circumstances. The trial court also explicitly rejected the Sanderses’ arguments for a recovery on the basis of either .quantum meruit or unjust enrichment.

The trial court later entered an order acknowledging that the claim against the Facilities Board had not been resolved by its previous order and ruled that there was no just reason for delaying the Sanderses’ appeal with respect to the liability of Bradley County under Ark. R. Civ. P. 54(b).

The standard of review for appealing the grant of summary judgment is well established:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.

Sublett v. Hipps, 330 Ark. 58, 62, 952 S.W.2d 140, 142 (1997), quoting Milam v. Bank of Cabot, 327 Ark. 256, 261-62, 937 S.W.2d 653, 656 (1997). Furthermore, “[o]nce a party establishes prima facie entitlement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a genuine issue of material fact.” Id.

The General Assembly created public facilities boards by the Public Facilities Boards Act, now codified at Ark. Code Ann. §§ 14-137-101 to -123 (1987 & Supp. 1995). This legislation provides in part that any county is authorized to establish one or more public facilities boards to construct health-care facilities. Ark. Code Ann. § 14-137-106(a)(l) (Supp. 1995). The General Assembly authorized and empowered the boards “[t]o do any and all . . . things necessary or convenient to accompfish the purposes of this chapter[,]” including the ability to succeed perpetually as a body politic that could sue and be sued in its own name. Ark. Code Ann. § 14-137-111 (Supp. 1995).

The Sanderses urge two reasons why this court should reverse the trial court and hold that the actions of the Facilities Board are imputed to Bradley County: (1) the Facilities Board was created by ordinance of the Quorum Court; and (2) the County Judge was responsible for appointing the initial members of the Facilities Board under Ark. Code Ann. § 14-137-108 (Supp. 1995). We view these reasons as essentially a contention that the Facilities Board acted as an agent for Bradley County. Thus, the initial question to be addressed is whether a principal-agent relationship existed between the Facilities Board and Bradley County. In Taylor v. Gill, 326 Ark. 1040, 1042-43, 934 S.W.2d 919, 921 (1996), this court said that the two essential elements of an agency relationship are (1) that an agent have the authority to act for the principal and (2) that the agent act on the principal’s behalf and be subject to the principal’s control. Id., citing Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 200, 871 S.W.2d 389, 392 (1994).

Bearing these elements in mind, we turn to section 14-137-104(c) of the Arkansas Code, which limits the ability of the counties to control the actions of the facilities boards:

Notwithstanding any other provisions of state law or ordinance of any municipality or county to the contrary, except as otherwise expressly provided in this chapter, none of the powers granted to a board under the provisions of this chapter shall be subject to the supervision or regulation or require the approval or consent of the state, or of any municipality, county, or political subdivision of the state, or of any commission, board, body, bureau, official, or agency of the state or any municipality, county, or political subdivision.

Ark. Code Ann. § 14-137-104(c) (1987)(emphasis added). Based on this statutory language, we conclude that the General Assembly has mandated independence between the facilities boards and the counties. This statutory separation is consistent with other provisions of the Public Facilities Board Act. See, e.g., Ark. Code Ann. § 14-137-120(a) (Supp. 1995) (bonds issued by a public facilities board do not obligate the faith and credit of the creating municipality or county); Ark. Code Ann. § 14-137-106(a)(2) (Supp. 1995) (public facilities boards are not administrative boards under the County Government Code).

Moreover, we agree with the trial court that there was no appropriation to support the contract. See Ark. Code Ann. § 14-20-106 (1987). This fact alone would render the contract unenforceable. See, e.g., Lyons Machinery Co. v. Pike County, 192 Ark. 531, 93 S.W.2d 130 (1936); American Disinfecting Co. v. Franklin County, 181 Ark. 659, 27 S.W.2d 95 (1930). Cf. State use Prairie County v. Leathem & Co., 170 Ark. 1004, 282 S.W. 367 (1926)(holding warrants issued in excess of appropriations void). Also, the Sanderses failed to abstract Bradley County Ordinance No. 262, leaving this court in the dark as to what powers the Quorum Court conferred on the Facilities Board. See Ark. Code Ann. § 14-137-107(2)(A) (1987) (ordinance shall specify powers granted to the facilities board). Hence, we can only speculate about whether the Facilities Board was acting within its conferred powers. This we will not do.

We turn next to the Sanderses’ claims of unjust enrichment and quantum meruit. Under Arkansas law, a claim for quantum meruit is generally made under the legal theory of unjust enrichment and does not involve the enforcement of a contract. Sisson v. Ragland, 294 Ark. 629, 745 S.W.2d 620 (1988); Dews v. Halliburton Industries, Inc., 288 Ark. 532, 708 S.W.2d 67 (1986). Nonetheless, a quantum meruit claim can succeed even when it is argued, in the alternative, to a contract that has been declared void. Sisson v. Ragland, supra; City of Damascus v. Bivens, 291 Ark. 600, 726 S.W.2d 677 (1987). The amount of a quantum meruit recovery is measured by the value of the benefit conferred upon the party unjustly enriched. City of Damascus v. Bivens, supra; Yaffe Iron & Metal Co. v. Pulaski County, 188 Ark. 808, 67 S.W.2d 1017 (1934).

In previous decisions, this court has permitted a quantum meruit recovery after a contract with a government entity was declared invalid. See, e.g., City of Damascus v. Bivens, supra (city obtained the benefit of physical improvements in the form of resealed streets as a result of an invalid services contract); Yaffe Iron & Metal Co. v. Pulaski County, supra (county kept purchase money even though it did not deliver two bridges that were the subject of a sales contract). Yet, it is clear from our decisions that in order for the legal theory of unjust enrichment to pertain, there must be some enrichment or benefit to the party against whom the claim is made. See, e.g., City of Damascus v. Bivens, supra. In Lyons Machinery Co. v. Pike County, supra, we defined benefit in terms of whether the county made any use of the concrete forms at issue.

In the instant case, there is no proof whatsoever offered by the Sanderses that Bradley County received the architectural plans or made use of them or even knew about .the contract with the Sanderses to provide the services. Indeed, according to the County Judge’s affidavit, he was not aware of the contract. Thus, the Sanderses faded to meet proof with proof to establish that Bradley County did indeed benefit from the architectural services. A mere allegation that this is the case is not enough to offset summary judgment. See Sublett v. Hipps, supra. It is true that counsel for the Sanderses mentioned at oral argument that the County Judge sat as an ex officio member of the Facilities Board, which would suggest knowledge. That statement, however, hardly constitutes proof. Moreover, the County Judge specifically averred in his filed affidavit that that was not the case. Given the lack of any proof that the Sanderses’ architectural plans have been used, or that Bradley County has been benefitted in any way by them, we reject the quantum meruit claim.

For their final point, the Sanderses argue that Bradley County should be estopped from claiming it did not know what was occurring with regard to the architectural contract. A review of the trial court’s order reveals that no ruling was obtained on this theory of relief. The point is, therefore, procedurally barred. See, e.g., Oglesby v. Baptist Medical Sys., 319 Ark. 280, 891 S.W.2d 48 (1995).

Affirmed.


author: Annabelle Clinton Imber, Justice.

text:
    Craig BURKHALTER v. STATE of Arkansas
    CR 96-278
    956 S.W.2d 171
    Supreme Court of Arkansas
    Opinion delivered December 4, 1997

      John I. Purtle. P.A., for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

The appellant, Craig Henry Burkhalter, was convicted of rape, sexual abuse in the first degree, and violation of a minor in the first degree. On appeal, Burkhalter contends that his convictions must be reversed due to juror misconduct. We find no merit to this argument, and accordingly, we affirm.

During the trial, the victim testified that starting when she was seven years old until she reached the age of fifteen, Burkhalter performed various sexual acts on her. Portions of the victim’s testimony were corroborated by a neighbor who witnessed and participated in some of the acts. Based on this evidence, the jury found Burkhalter guilty of rape, sexual abuse in the first degree, and violation of a minor in the first degree. Burkhalter does not challenge the sufficiency of the evidence to support these convictions.

During the sentencing phase of the trial, the court gave the jury AMI Crim. 2d 9401, which says:

In your deliberations on the sentence to be imposed, you may consider the possibility of the transfer of Craig Burkhalter from the Department of Correction to the Department of Community Punishment. After he serves one-third (1/3) of any term of imprisonment to which you may sentence him, he may be eligible for transfer from the Department of Correction to the Department of Community Punishment. If transfer is granted, he will be released from prison and placed under post-prison supervision. The term of imprisonment may be reduced further to one-sixth (1/6) of any period you impose, if he earns the maximum amount of meritorious good time during his imprisonment.

The court also gave the jury AMI Crim. 2d 9402, which says:

Rape is punishable by life imprisonment or a term of years. Persons under sentence of life imprisonment are not eligible for transfer. If you sentence Craig Burkhalter to imprisonment for a term of years, after he serves one-half (1/2) of the term you impose he will be eligible for transfer from the Department of Correction to the Department of Community Punishment. If transfer is granted, he will be released from prison and placed under post-prison supervision. The term of imprisonment may be reduced further to one-fourth (1/4) of any period you impose, if he earns the maximum amount of meritorious good time during his imprisonment. However, persons under sentence of life imprisonment are not eligible for meritorious good time.

The jury then retired to the deliberation room to decide on Burkhalter’s sentence. After they deliberated for twenty minutes, the jury sent the judge a note saying: “What’s life? Fractional breakdown. Consecutive or concurrent.” The judge sent back a note stating: “Life means fife. I cannot answer the other questions.” Approximately twenty minutes later, the jury sent the judge a second note saying: “We want to give him 20 years before parole. How do we do this?” The judge replied: “I cannot answer this. Sorry.”

Approximately three hours later, the jury announced that they were deadlocked eight to four on a sentencing decision. The court asked the jurors if further deliberations would prove futile. Several jurors nodded their heads affirmatively, but three jurors said that further deliberations would be helpful. The jury resumed deliberations and returned approximately thirty minutes later with the following sentencing decision: ten years’ imprisonment for sexual abuse in the first degree, ten years’ imprisonment for violation of a minor in the first degree, and life imprisonment for rape.

Burkhalter timely filed a motion for a new trial alleging that there had been a “manifest injustice” because the jury intended to sentence him to twenty years’ imprisonment instead of life. Burkhalter did not attach an affidavit or present any other evidence to substantiate the allegations contained in the motion. The motion was deemed denied thirty days after it was filed, and this appeal followed.

For his sole argument on appeal, Burkhalter contends that he should have been granted a new trial due to juror misconduct. In his motion for a new trial, Burkhalter claimed that the jury was confused about the sentencing procedure and thus rendered a sentence of life imprisonment instead of a sentence of twenty years. On appeal, Burkhalter has changed his argument and claims that a juror said during deliberations that Burkhalter would serve only seven years if sentenced to life imprisonment. As we have said on numerous occasions, we will not consider an argument raised for the first time on appeal. McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997); State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997); Jones v. State, 327 Ark. 85, 937 S.W.2d 633 (1997).

Furthermore, the only evidence Burkhalter provided in support of his allegation of juror misconduct was an affidavit signed by his attorney. This affidavit, however, was not included in the record. It is well settled that the appellant bears the burden of producing a record that demonstrates error, and thus we have consistently refused to consider on appeal matters outside of the record. See, e.g., Winters v. Elders, 324 Ark. 246, 920 S.W.2d 833 (1996) (excluding the chancellor’s letter opinion); Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997) (omitting the transcript of the hearing); Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993) (failing to include portions of the first trial). Because the affidavit Burkhalter presents in support of his contention of juror misconduct was not contained in the record, we are precluded from considering it upon appeal.

In accordance with Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for rulings decided adversely to Burkhalter but not argued on appeal, and no reversible errors were found.

Affirmed.


text:
    O’Neal WILSON v. REBSAMEN INSURANCE, INC. d/b/a Insurisk Insurance Services, Jim Moorhead, and John Doe
    97-14
    957 S.W.2d 678
    Supreme Court of Arkansas
    Opinion delivered December 4, 1997

      Trajfiord Law jinn, by: G. Ray Howard and Duncan & RainwaterP.A., by: Michael R. Rainwater, for appellant.

      Anderson & Kilpatrick, by: Mariam T. Hopkins, for appellee.
   Annabelle Clinton Imber, Justice.

This is a tort case in which the appellant, O’Neal Wilson, sued the appellees, Rebsamen Insurance, d/b/a Insurisk Insurance Services, and Jim Moor-head, for injuries he sustained while working for his employer. The trial court granted the appellees summary judgment because it ruled that they were immune from suit under the exclusive remedy provision of the workers’ compensation statute, and because they did not owe a duty of care to Wilson. We disagree with both of these rulings, and accordingly we reverse and remand.

Insurisk Insurance Services, a company owned and operated by Rebsamen Insurance, conducts loss-control surveys and recommends safety improvements for its customers. In the late 1970’s, Arkansas Oak Flooring hired Insurisk to conduct loss-control surveys of its facilities in an effort to contain the rising costs of workers’ compensation insurance coverage. Specifically, Insurisk contractually agreed to make inspections and provide recommendations regarding safety. Insurisk did not have the authority to implement the program or to make the suggested safety improvements. Jim Moorhead, Insurisk’s vice-president of management services, was in charge of the project.

On September 16, 1988, O’Neal Wilson was injured while he was working for his employer, Arkansas Oak Flooring, when he fell from a catwalk that did not have safety rails. Sometime after the accident, Arkansas Oak’s workers’ compensation carrier, Home Insurance Company, paid Wilson permanent and total disability benefits.

On April 23, 1993, Wilson filed a complaint against Insurisk and Jim Moorhead alleging that they were negligent in failing to discover, warn about, and correct the safety hazard posed by the unguarded catwalk. Wilson also claimed that Moorhead and Insurisk affirmatively hid the existence of the defect from Arkansas Oak by giving the company a clearance on overall safety when it knew or should have known of the unsafe condition of the catwalk. Finally, Wilson asserted that Moorhead and Insurisk had a “silent agreement” with Arkansas Oak to ignore safety violations so that Arkansas Oak could obtain “favorable insurance treatment.”

On May 30, 1995, Insurisk and Moorhead filed a motion for summary judgment contending that they did not owe a duty of care to Wilson, and that Wilson’s lawsuit was barred by the exclusive remedy provision of the workers’ compensation statute. Insurisk and Moorhead attached to their motion the affidavits of John Fox, Jr., the President of Arkansas Oak, Glenn Pdchards, Arkansas Oak’s plant supervisor from 1978 to 1980, and Jim Moorhead. In all three affidavits, the affiants declared that prior to Wilson’s accident Jim Moorhead recommended both orally and in writing that Arkansas Oak install guardrails on the catwalk to remedy the potentially dangerous condition. In addition, the affiants declared that Moorhead and Insurisk had no authority to implement their suggested changes. Finally, John Fox explained in his affidavit that Arkansas Oak decided against making the changes recommended by Moorhead and Insurisk “due to cost and feasibility considerations.”

In his response, Wilson produced the affidavits of William Fish, Larry Borecky, and Boulter Kelsey. William Fish witnessed Wilson’s fall, and testified that there were no guardrails on the catwalk at the time of the accident. Larry Borecky, Arkansas Oak’s safety manager who was hired one month before the accident, declared in his affidavit that Insurisk and Moorhead failed to notify him about the safety problem created by the unguarded catwalk. Finally, H. Boulter Kelsey, Jr., a professional engineer, declared in his affidavit that the unguarded catwalk created an unreasonably dangerous condition that should have been detected by Moorhead and Insurisk.

On September 20, 1996, the trial court ruled that Insurisk and Moorhead were immune from suit under the exclusive remedy provision of the workers’ compensation statute, and that they did not owe a duty of care to Wilson. Accordingly, the court granted summary judgment to Insurisk and Moorhead. From the order of summary judgment, Wilson filed a timely notice of appeal.

As we have stated on numerous occasions, summary judgment is appropriate only when there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. Wheeler v. Phillips Dev. Corp., 329 Ark. 354, 947 S.W.2d 380 (1997); Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997). In making this determination, we review the evidence in the light most favorable to Wilson, as the party resisting the motion, and resolve all doubts and inferences in his favor. Wheeler, supra; Porter, supra.

I. Immunity under the Workers’ Compensation Act

For his first argument on appeal, Wilson contends that the trial court erred when it ruled that Insurisk and Moorhead were immune frqm liability under the Workers’ Compensation Act. Whether a safety consultant, which does not provide workers’ compensation coverage to the employer, is immune from tort liability under the Workers’ Compensation Act is an issue of first impression in Arkansas.

A. Ark. Code Ann. § 11-9-409

Insurisk and Moorhead contend that they are immune from Wilson’s tort action under Act 796 of 1993, codified at Ark. Code Ann. § ll-9-409(e) (Repl. 1996), which states that:

the insurance company, the agent, servant, or employee of the insurance company or self-insured employer, or a safety consultant who performs a safety consultation under this section shall have no liability with respect to any accident based on the allegation that such accident was caused or could have been prevented by a program, inspection, or other activity or service undertaken by the insurance company or self-insured employer for the prevention of accidents in connection with operations of the employer.

The emergency clause of Act 796, however, specifically states that it “shall apply only to injuries which occur after July 1, 1993.” 1993 Ark. Acts 796, § 41. In this case, Wilson was injured on September 16, 1988, which is well before the applicable date of Act 796. In addition, Insurisk and Moorhead did not argue before the trial court that they were immune under Ark. Code Ann. § 11-9-409 (e), and thus they are precluded from raising this issue for the first time on appeal. See, McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997); Ouachita Wilderness Inst., Inc. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997).

B. Ark. Code Ann. §§ 11-9-105 and 410

Instead of arguing that they were immune under Ark. Code Ann. § ll-9-409(e), Insurisk and Moorhead argued before the trial court that they were immune from Wilson’s tort action under Ark. Code Ann. § ll-9-105(a) (Repl. 1996), which states that:

The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer ... on account of the injury or death, and the negligent acts of a coemployee shall not be imputed to the employer.

Although Ark. Code Ann. § ll-9-105(a) provides that workers’ compensation is the employee’s exclusive remedy against the employer, the employee may sue a “third-party” who negligently causes his injuries under Ark. Code Ann. § ll-9-410(a)(l)(A) (Repl. 1996), which provides that:

The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his dependents, to make a claim or maintain an action in court against any third party for the injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in the action.

(Emphasis added.) On appeal, Wilson argues that Insurisk and Moorhead are not immune under the exclusive remedy provision of section 105 because they are “third parties” as defined by section 410. We agree.

In Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969), we defined a “third party” as used in section 410 as:

some person or entity other than the first and second parties involved, and the first and second parties can only mean the injured employee and the employer or one liable under the compensation act.

(Emphasis added.) Relying upon this language, we reasoned in Burkett v. PPG Industries, Inc., 294 Ark. 50, 740 S.W.2d 621 (1987), that the workers’ compensation carrier was not a “third party” under section 410 because it was the only other entity, besides the employer, that could be held “liable under the workers’ compensation act.” Hence, we held in Burkett, that a workers’ compensation carrier has the same immunity from suit as provided to the employer under section 105. Id. Likewise, in Brown v. Finney, 326 Ark. 691, 932 S.W.2d 769 (1996), we held that co-employees are immune from suit under section 105 if at the time of the injury they were performing the employer’s duty to provide a safe work place.

In this case, however, Insurisk was neither Arkansas Oak Flooring’s workers’ compensation carrier as in Burkett, nor was it Arkansas Oak Flooring’s employee, as in Brown. Instead, Insurisk was an independent contractor hired by Arkansas Oak Flooring to perform safety inspections. Because we have strictly construed section 105 to extend immunity beyond the employer in only the two instances enumerated in Burkett and Brown, we hold that the trial court erred when it ruled that Insurisk was immune from Wilson’s tort action under the exclusive remedy provision of the Workers’ Compensation Act.

II. Duty of Care

Next, Wilson claims that the trial court erred when it ruled that Insurisk and Moorhead did not owe him a duty of care. Specifically, Wilson argues that by contracting with Arkansas Oak Flooring to perform safety inspections of its facilities, Insurisk and Moorhead undertook a duty of care towards all of Arkansas Oak Flooring’s employees to perform those inspections with reasonable care. We agree with this argument, and accordingly we reverse the trial court’s order of summary judgment.

In Construction Advisors, Inc. v. Sherrell, 275 Ark. 183, 628 S.W.2d 309 (1982), we previously held that by undertaking a duty to the owner of a construction site, Construction Advisors also owed a duty of care to a third party who was injured due to Construction Advisor’s negligent performance of its undertaking. In Sherrell, however, Construction Advisors agreed to maintain a safe premises instead of merely agreeing to inspect the work site and warn about potential safety problems as in this case. Id. Hence, we are asked for the first time to decide whether an independent consulting firm that agrees to perform safety inspections of an employer’s premises, but has no authority to implement the safety changes it suggests, owes a duty of care to a third-party employee who is injured on the job.

Wilson argues that such a duty exists under section 324A of the Restatement of Torts which states that:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm, resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965). According to the comments to the Restatement, the “undertaker” is liable to the third party under section (b) merely if it undertakes a duty owed to the third party by another. Restatement (Second) of Torts § 324A, cmt. d (1965).

As previously mentioned, whether an independent safety-inspection company owes a duty of care to a third-party employee is an issue of first impression in Arkansas. Other jurisdictions have consistently held that pursuant to section (b) of Restatement 324A an independent consulting firm that agrees to perform safety inspections of an employer’s work place owes a duty of care to a third-party employee to perform those inspections with reasonable care. Canipe v. National Loss Control Serv. Inc., 736 F.2d 1055 (5th Cir. 1984); Santillo v. Chambersburg Eng’g Co., 603 F. Supp. 211 (E.D. Pa. 1985), aff'd, 802 F.2d 447 (3rd. Cir. 1986); see also Price v. Management Safety Inc., 485 So.2d 1093 (Ala. 1986) (imposing a duty without mentioning Restatement § 324A); Gallicho v. Corporate Group Serv. Inc., 227 So.2d 519 (Fla. App. 1969) (finding a duty of care under contract law). These jurisdictions reason that the safety consultant owes a duty of care under Restatement § 324A(b) because it is reasonably foreseeable that if the inspections are done improperly a third-party employee will be injured. See Santillo, supra; Gallicho, supra.

Moreover, the facts of the cases in which other courts have imposed a duty of care are virtually identical to the facts at hand. For example, in Santillo, an employer hired NATLCO, an independent consulting firm, to perform safety inspections of its plant and make recommendations concerning safety improvements. Santillo, supra. Although it appears that NATLCO did not have the authority to implement the safety improvements it recommended, the Pennsylvania court held that pursuant to section (b) of Restatement 324A, NATLCO owed a duty of care to an employee who was injured as a result of NATLCO’s allegedly negligent inspection of a piece of machinery. Santillo, supra.

Likewise, in Canipe, an employer hired National Loss, an independent consulting firm, to provide safety inspections and accident-prevention services at its manufacturing plant. Canipe, supra. As in Santillo, National Loss did not have the authority to implement the safety improvements it deemed necessary. Canipe, supra. Despite this fact, the Fifth Circuit Court of Appeals held that National Loss owed the employee a duty of care under Restatement 324A(b) to conduct its safety inspections with reasonable care. Canipe, supra.

In both Santillo and Canipe, the courts imposed a duty of care on the independent safety consultant despite the fact that the consultant did not have the authority to implement the safety corrections. Moreover, Insurisk and Moorhead have failed to cite, nor could we find, any case in which the ability of the safety consultant to implement improvements was a relevant factor in determining whether the consultant owed a duty of care to the injured employee. See generally, Frank J. Wozniak, Breach of Assumed Duty to Inspect Property as Ground for Liability to Third Party, 13 A.L.R.5th 289 (1993). This is because the authority to implement safety changes is an issue of proximate causation and not duty.

We are aware that some courts have refused to impose a duty of care when the inspection is performed by the employer’s insurance carrier because the carrier performed the inspection to reduce its own potential liability and not for the purpose of protecting employees from harm. See, e.g., Davis v. Liberty Mut. Insur. Co., 525 F.2d 1204 (5th Cir. 1976) (applying Alabama law); Tillman v. Travelers Indem. Co., 506 F.2d 917 (5th Cir. 1975) (applying Mississippi law). Likewise, some courts have refused to impose a duty of care when the inspections are performed by a government agency. See, e.g., Raymer v. United States, 660 F.2d 1136 (6th Cir. 1981) (applying Kentucky law); Blessing v. United States, 447 F. Supp. 1160 (E.D. Pa. 1978) (applying Pennsylvania law).

In this case, Insurisk was neither Arkansas Oak Flooring’s insurer nor was it a government agency. Thus, we hold that Insurisk and Moorhead owed a duty of care to Arkansas Oak Flooring’s employees, including Wilson, to perform safety inspections with reasonable care. In this respect, however, we acknowledge that the degree of the undertaking defines the scope of the duty of care owed to the third party. See, e.g., Santillo, supra; Canipe, supra; Blessing, supra.

In this case, Insurisk and Moorhead agreed to inspect the work site and warn Arkansas Oak Flooring about any detected safety hazards. Plence, Insurisk and Moorhead will be liable to Wilson only if it is determined that they breached those duties, and that such breach proximately caused Wilson’s injuries. Whether Arkansas Oak Flooring would have exercised its sole authority to implement the changes suggested by Insurisk and Moorhead is an issue of proximate causation, not duty, and thus, should be resolved by the jury instead of the court. See, Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997); McGraw v. Weeks, 326 Ark. 285, 930 S.W.2d 285 (1996). Moreover, neither party appealed the trial court’s finding that “there would be sufficient evidence to make [a] jury question regarding breach of duty and proximate cause if the Defendants owe a duty” to Wilson.

For these reasons, we conclude that Insurisk and Moorhead are not immune from Wilson’s tort action under the exclusive remedy provision of the workers’ compensation statute, and that pursuant to section (b) of the Restatement (Second) of Torts § 324A, Insurisk and Moorhead owed Wilson a duty of care in connection with their undertaking to inspect the premises and warn Arkansas Oak Flooring about any detected safety hazards. Accordingly, we reverse the trial court’s order of summary judgment and remand for further proceedings consistent with this opinion.

Reversed and remanded.

       Wilson died on September 5, 1993, as a result of a heart attack that was not associated with the injuries he sustained from his fall at Arkansas Oak’s facility. Simmons First National Bank, the special administrator of Wilson’s estate, was allowed to pursue this case on Wilson’s behalf.

       The doctrine embodied in Restatement 324A is frequently called the “good Samaritan” doctrine even though the duty may be undertaken gratuitously or for consideration. See, e.g., Pantentas v. United States, 687 F.2d 707 (3rd Cir. 1982); Santillo v. Chambersburg Eng’g Co., 603 F. Supp. 211 (E.D. Pa. 1985), aff'd, 802 F.2d 448 (3rd Cir. 1986).


author: Ray Thornton, Justice.

text:
    Clarence MANNING v. STATE of Arkansas
    CR 97-102
    956 S.W.2d 184
    Supreme Court of Arkansas
    Opinion delivered December 4, 1997

      Christopher M. Jester, for appellant.

      Winston Bryant, Att’y Gen., by: SC. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   Ray Thornton, Justice.

Clarence Manning, appellant, was convicted by bench trial of possession of a controlled substance with intent to deliver, possession of drug paraphernalia with intent to use, and simultaneous possession of drugs and a firearm. He appeals only the simultaneous possession conviction, arguing that, under the statutory defense, the guns found at his home were not “readily accessible for use.” After careful consideration of the meaning of this phrase, we disagree, and affirm.

Manning was arrested and charged with the offenses after four police officers executed a search warrant at 216 East Word, in Jonesboro. When they entered the home, two men were seated in the living room, and four men, including Manning, were in the kitchen. The police searched the house and found two guns wrapped in a black ski mask on the top shelf of the closet in the only bedroom. One gun was a Lorcin 9-millimeter pistol, which was loaded, and the other was an unloaded Smith & Wesson .38-caliber revolver. While in the bedroom, the police also found seventeen grams of rock cocaine in the pocket of a jacket hung in the closet, and about three grams of cocaine powder in the pocket of a pair of jeans in a dresser drawer. The police found drug paraphernalia in the kitchen. All parties concede that the house is very small. After determining that Manning lived in the house by himself, the trial court convicted him.

Under the Arkansas Criminal Gang, Organization, or Enterprise Act, “[n]o person shall unlawfully commit a felony violation of § 5-64-401 [Uniform Controlled Substances Act] . . . while in possession of . . . [a] firearm.” Ark. Code Ann. § 5-74-106(a) (Repl. 1993). A person found guilty of this offense may be sentenced to prison for a term of ten to forty years, or life. Id. §§ 5-4-401(a)(l), 5-74-106(b). At trial, Manning raised the statutory defense that the “defendant was in his home and the firearm was not readily accessible for use.” Id. § 5-74-106(d). The code does not define the phrase, “readily accessible for use.”

The State argued that the accessibility of the guns should not turn on their proximity to the appellant at the moment of the officers’ entry into the residence. The trial court agreed, stating that it should not make a difference in a defendant’s guilt or innocence that he was in the room with the firearm or in another room. The court stated that the term “readily accessible for use” means more than “in close proximity to defendant.” Instead, the court maintained that close proximity is just one factor among the several to be considered. The court noted that “it is inconceivable that the defendant would not be guilty if he was in the kitchen but guilty if he was in the bedroom.”

On appeal, Manning contends that “the location of the guns is key.” He seems to conclude that the firearm must be within the defendant’s reach when he argues that the guns were not readily accessible because they were in a different room, wrapped in a ski mask, and one was unloaded.

Because our case law has not addressed the meaning of “readily accessible for use,” we approach the issue by applying rules of statutory construction. First, we attempt to construe the statute “from the natural and obvious import of the language used by the legislature without resorting to subtle and forced construction for the purpose of limiting or extending the meaning.” City of North Little Rock v. Montgomery, 261 Ark. 16, 18, 546 S.W.2d 154, 155 (1977). As a rule, criminal statutes are strictly construed with any doubts resolved in favor of the accused. Puckett v. State, 328 Ark. 355, 358, 944 S.W.2d 111, 113 (1997) (citations omitted). We have stated, however, that such statutes shall not be so strictly construed as to defeat the obvious intent of the legislature. Id. Thus, when the language of the statute is capable of two interpretations, its meaning is ambiguous and we are compelled to look to the intent and purpose of the General Assembly in enacting the statute. First State Bank v. Arkansas State Banking Bd., 305 Ark. 220, 223, 806 S.W.2d 624, 626 (1991). Finally, to determine legislative intent, we look to appropriate sources that clarify the matter, including the language of the statute, the subject matter, the object to be accomplished, and the purpose to be served. Bd. of Trustees v. Stodola, 328 Ark. 194, 199, 942 S.W.2d 255, 257 (1997).

Manning’s argument suggests that the plain meaning of the phrase, “readily accessible for use,” is that the firearm must be “in close approximation to the defendant or within defendant’s easy reach.” The State construes the phrase according to dictionary definitions as “available to the defendant without much difficulty.” Both constructions have merit. Neither one can be said to force a construction that limits or extends the meaning of the phrase. In view of this ambiguity, we look to the legislative intent and purpose in enacting the statute to determine whether the construction urged by Manning would be consistent with that legislative intent.

The General Assembly declares its intent and purposes of the Act in Ark. Code Ann. section 5-74-102, which is entitled, “General legislative findings, declarations, and intent.” A fair reading of that section’s provisions suggests that the General Assembly intended to address violence in the drug trade by making laws tougher on drug dealers who use firearms. The following statements are most pertinent to the simultaneous possession provision: (1) It is the right of every person “to be secure and protected from fear, intimidation, and physical harm caused by the activities of groups engaging in random crimes of violence, and committing crimes for profit and violent crimes committed to protect or control market areas or ‘turf”; (2) these groups are becoming “increasingly sophisticated at avoiding arrest and prosecution”; and (3) “one of the primary reasons for the increased homicide rate is the use of firearms by criminal gangs, organizations, or enterprises to control the crack cocaine market within their geographical ‘turf.’” The legislative intent behind the Act is obvious in section 5-74-102(e) where the General Assembly said, “[i]t is furthermore the intent of the General Assembly to focus the state’s law enforcement agencies and prosecutors on investigating and prosecuting all ongoing organized criminal activity and to provide for penalties that will punish and deter organized ongoing criminal activity.” Ark. Code Ann. § 5-74-102(e) (Repl. 1993).

When addressing another issue, we construed the legislative intent of the Act in State v. Zawodniak, 329 Ark. 179, 946 S.W.2d 936 (1997). In that case, we said that the simultaneous possession statute “not only serves to deter organized gang and criminal activities, but also seeks the broader purpose to curtail any person’s use of a firearm when that person is involved in the illegal trafficking in or possession of controlled substances.” Id. at 182, 946 S.W.2d at 937.

The legislative intent informs us that there must be some link between the firearm and drugs, and that mere possession of a firearm is not enough. Despite this clear expression, the question remains whether the firearm must be proximate and accessible to the defendant, proximate to the drugs or drug proceeds, or some combination of the two. Here, however, we can determine that the Lorcin handgun was readily accessible for use because the facts show that this proximity and accessibility test is met for both situations.

In this case, there was evidence showing more than mere possession of a firearm in Manning’s home. Manning had a loaded handgun, wrapped in a ski mask, near an abundant supply of illegal drugs, all within his easy reach. Given the legislative intent, we conclude that the factual circumstances are such in this case that the trial judge did not err when he determined that the Lorcin handgun was readily accessible for use.

Affirmed.

       The dictionary definition of “readily” is “without much difficulty.” Webster’s Ninth New Collegiate Dictionary 980 (1987). “Accessible” means “capable of being reached.” Id. at 48.


text:
    Patrick M. WRIGHT and Elizabeth Wright v. Bimlendra SHARMA, M.D., and B.V. Pai, M.D.
    97-24
    956 S.W.2d 191
    Supreme Court of Arkansas
    Opinion delivered December 4, 1997

      Andrew L. Clark, for appellant.

      Friday, Eldredge & Clark, by: J. Phillip Malcom and Fran C. Hickman, for appellees.
   Ray Thornton, Justice.

This is an appeal from a trial court’s order dismissing a medical malpractice case as untimely filed. Appellant Patrick Wright and his wife, Elizabeth, brought an action against two cardiologists, Dr. Bimlendra Sharma and Dr. B.V. Pai, alleging that they were negligent in causing Mr. Wright to undergo an unnecessary pericardiectomy. The Wrights argued to the trial court that the doctors undertook a continuous course of treatment of Mr. Wright for pericarditis, and that this tolled the statute of limitations. We hold that the trial court was correct in determining that the continuous-treatment doctrine did not toll the applicable two-year statute of limitations, Ark. Code Ann. § 16-114-203 (Supp. 1995).

When the running of the statute of limitations is raised as a defense, the defendant has the burden of affirmatively pleading the defense. First Pyramid Life Ins. Co. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992). However, once it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled. Id. Here, it is clear that the act complained of did not take place within the limitations period because the allegedly unnecessary surgery took place on July 13, 1993, and the action was commenced on February 9, 1996, which was more than two years later. Ark. Code Ann. § 16-114-203.

We note that, although the Wrights initially filed a complaint on June 8, 1995, the cause of action was never commenced because the doctors were not served until more than 120 days after the first complaint was filed. Under Ark. R. Civ. P. 4(i), if a plaintiff files a lawsuit and does not serve the defendant within 120 days, the action is never commenced. Thomson v. Zufari, 325 Ark. 208, 924 S.W.2d 796 (1996). Therefore, the trial court was correct in calculating the limitations period from February 9, 1996, the date this action was filed.

Because it was clear from the face of the complaint that the alleged negligent act took place outside the limitations period, it became the Wrights’ burden in the lower court to show that the limitations period was tolled. Stoltz, supra. We hold that the trial court was correct in its determination that the Wrights failed to prove that the period was tolled by a continuous course of treatment.

At the hearing on the motion, the trial court considered affidavits, discovery documents, pleadings, and exhibits that revealed the following facts. On January 5, 1993, Mr. Wright was admitted to St. Joseph’s Regional Medical Center with chest pain. Dr. Sharma diagnosed and treated him for pericarditis, of which he had a history. On June 22, 1993, Mr. Wright was again admitted to the hospital with chest pain. On that date he was treated by Dr. Pai, who was covering for Dr. Sharma. Dr. Pai’s discharge summary states that the chest pain on that date was “secondary to gastrointestinal etiology.”

On July 13, 1993, Mr. Wright was again admitted to the hospital with chest pain. This time, he was seen by Dr. Matthew Hulsey, a family-practice physician. An emergency CAT scan was performed, which, according to Dr. Hulsey’s notes, revealed acute aortic dissection. An emergency thoracotomy was ordered, upon which it was discovered that Mr. Wright had a constrictive pericarditis with a heavy sludge within the entire pericardium. The record indicates that a Dr. Howe performed a partial pericardiectomy, removing the outside lining of the pericardial sac. There is no indication in the record that either Dr. Sharma or Dr. Pai ordered, performed, or participated in this surgery.

On August 30, 1993, Mr. Wright saw Dr. Sharma in his office for a post-hospital visit. The nurses’ notes state that he denied having any chest pain or shortness of breath. Nurses’ notes taken on March 1, 1994, show that he requested a letter from Dr. Sharma stating that he could perform a job as a truck driver. The notes indicate that on March 4, 1994, he was told that he needed to be seen before the doctor could give him the letter. He was seen in Dr. Sharma’s office on April 12, 1994, at which time he stated that he had no chest discomfort.

We agree with the trial court that the continuous-treatment doctrine does not apply to these facts. We have said that “the continuous treatment doctrine becomes relevant when the medical negligence consists of a series of negligent acts, or a continuing course of improper treatments.” Lane v. Lane, 295 Ark. 671, 675, 752 S.W.2d 25, 27 (1988). The cause of action accrues at the end of a continuous course of medical treatment. Id. The doctrine is based upon the principle that it is unfair to bar a plaintiff who has been subjected to a series of treatments that were negligently administered, simply because the plaintiff is unable to identify the one treatment that produced his injury. Id. We have also said that “‘[i]t would be absurd to require a wronged patient to interrupt corrective efforts by serving a summons on the physidan.”’ Id.' (quoting 1 D. Louisell and H. Williams, Medical Malpractice § 13.08 (1982)).

Here, there is no allegation of a series of negligent acts; in fact, the Wrights’ complaint clearly states that the doctors successfully treated Mr. Wright for his pericarditis with anti inflammatories. Only one negligent act is alleged, and that is the allegedly unnecessary surgery, which had continuing effects.

It appears that the complaint is based upon an assertion of a continuing tort. While it is undisputed that neither Dr. Sharma nor Dr. Pai ordered or performed the surgery, the Wrights urge that they were negligent in not preventing the surgery from taking place. Even if their inaction could be regarded as a basis for a claim of negligence, it was consummated upon the performance of the surgery, and did not give rise to circumstances that would make appropriate the application of the continuous-treatment doctrine. See Tullock v. Eck, 311 Ark. 564, 845 S.W.2d 517 (1993); Treat v. Kreutzer, 290 Ark. 532, 720 S.W.2d 716 (1986); Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976); Williams v. Edmondson, 257 Ark. 837, 250 S.W.2d 260 (1975); see also Note, Torts Limitations on Actions Arkansas Adopts Continuous Treatment Rule to Toll Statute of Limitations in Medical Malpractice Actions, 11 U.A.L.R. L. J. 405 (1989).

In summary, we recognize that in some circumstances a medical injury may result from one or more wrongful acts that are connected with a continuation of treatment or culmination of the injury, and that under such circumstances the statute of limitations is tolled under the continuous-treatment doctrine. However, those circumstances are not reflected in the record of this case. We agree with the finding of the trial court that the two-year statute of limitations was not tolled and that the action was time-barred.

Affirmed.


author: Per Curiam.

text:
    James Jess COLVIN v. STATE of Arkansas
    CR 97-1353
    958 S.W.2d 297
    Supreme Court of Arkansas
    Opinion delivered December 4, 1997

      Kent T. Tharel, for appellant.
    No response.
   Per Curiam.

Appellant James Jess Colvin has filed a motion for rule on the clerk. The motion reflects that the notice of appeal was filed before the judgment and commitment order was entered. The motion was, therefore, untimely and ineffective. See Ark. R. App. P. — Civ. 4.

Appellant’s attorney, Kent T. Tharel, has assumed responsibility for not verifying that the judgment and commitment order had been filed prior to the filing of the notice of appeal. Because he has admitted responsibility for the error, we treat the motion for rule on the clerk as a motion for belated appeal, and we grant it. We direct that a copy of this order be filed with the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).


author: Per. Curiam.

text:
    Mikey Dale FORREST v. STATE of Arkansas
    CR 97-1311
    955 S.W.2d 187
    Supreme Court of Arkansas
    Opinion delivered December 4, 1997

      Greg Robinson, for appellant.
    No response.
   Per. Curiam.

Petitioner, Mikey Dale Forrest, by his attorney, Greg Robinson, has filed a motion for rule on the clerk. His attorney admits that the record in this case was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


text:
    Robert Harold KINKEAD and Joyce Kinkead v. Carol and Kinkead SPILLERS and Jeannine Lea Kinkead Mathis, Hon. Ellen Brantley, Fifth Division Chancery Court of Pulaski County, Arkansas
    97-1302
    955 S.W.2d 909
    Supreme Court of Arkansas
    Opinion delivered December 4, 1997

      Joyce Kinkead, for petitioners.
    No response.
   Per Curiam.

Petitioners Robert Harrold Kinkead and Joyce Kinkead petition this court for a writ of mandamus to Chancellor Ellen B. Brantley, Fifth Division Chancery Court of Pulaski County, directing that she enter a final order in this matter. We grant the writ.

On March 17, 1997, this court handed down an opinion in this matter in which we dismissed the appeal of the Kinkeads without prejudice for failure to appeal from a final order. See Kinkead v. Spillers, 327 Ark. 552, 940 S.W.2d 437 (1997). In our opinion, we made specific mention of a judgment Hen in favor of intervenor Boatmen’s National Bank of Arkansas, which, according to the record before us, had not been resolved with regard to the proceeds derived from, the sale of the land at issue. We specifically stated that the Boatmen’s claim was not merely collateral to the Kinkeads’ claim.

According to the record before this court filed in conjunction with the Kinkeads’ petition for a writ of mandamus, after the chancellor’s order entered on September 10, 1996, which approved the commissioner’s deed in this matter, the Hen of Boatmen’s was satisfied. On October 9, 1996, the chancellor of the Second Division Chancery Court of Pulaski County entered an order releasing funds received from the sale of the land and held by the Chancery Clerk to Boatmen’s, and the bank subsequently released its judgment lien against the land.

Following this court’s opinion on March 17, 1997, the Kinkeads moved Chancellor Brantley for entry of a final judgment from which they could appeal. By letter opinion dated June 3, 1997, and by order entered August 19, 1997, Chancellor Brantley made it clear that she disagreed with the opinion of this court. The chancellor stated in her order:

The Supreme Court found that the Defendants’ appeal was premature as not having been made from a final order, as asserted by Intervenor. However, the parties’ briefs apparently did not sufficiently impress upon the Supreme Court that a final order (the order of September 10, 1996), had been entered but after the order appealed from and that the matter of Intervenor’s lien had been fully addressed therein. Therefore, this Court having already entered a final order which was not appealed from, there is nothing more required of this Court. (Emphasis in the original order.)

In her specific order, she stated: “The Court finds no need to make any further orders in this case.”

Without a final order, the Kinkeads are unable to perfect their appeal. The Fifth Division Chancery Court is directed to enter a final order forthwith incorporating her order of September 10, 1996, and describing the resolution of intervenor Boatmen Bank’s judgment-lien claim.

Writ granted.


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

text:
    Gary BODIFORD, M.D. v. Ronald Keith BESS
    97-462
    956 S.W.2d 861
    Supreme Court of Arkansas
    Opinion delivered December 11, 1997

      Davis, Cox & Wright, by; Walter B. Cox and Tim E. Howell, for appellant.
    No response.
   W.H. “Dub” Arnold, Chief Justice.

The appellant, Gary Bodiford, M.D., appeals an order dismissing, without prejudice, the medical malpractice complaint of appellee Ronald Keith Bess. Dr. Bodiford’s sole argument on appeal is that the dismissal should have been with prejudice. We agree and affirm the trial court’s judgment as modified.

On June 13, 1996, Mr. Bess filed a pro se complaint against Dr. Bodiford in the Fort Smith District of the Sebastian County-Circuit Court to recover damages for medical injury arising from radial keratotomies that Dr. Bodiford performed on him on or about July 23, 1993, and October 28, 1994. Particularly, Mr. Bess alleged that, during these eye surgeries, Dr. Bodiford carelessly and negligently placed the cuts too close together on his eye, resulting in diminished vision. After filing the complaint, Mr. Bess did not perfect service upon Dr. Bodiford within 120 days as required by Ark. R. Civ. P. 4(i), nor did he file a motion to extend his time to obtain service within the 120-day period as required by the rule.

Upon learning of the lawsuit informally, Dr. Bodiford filed a motion to dismiss the case with prejudice on January 2, 1997. According to Dr. Bodiford, he was entitled to a dismissal with prejudice because the malpractice alleged in the complaint occurred on or before October 28, 1994. Because Mr. Bess had not obtained service on him and had not sought an extension within 120 days after filing the complaint, Dr. Bodiford maintained that the complaint had not been legally commenced. It was Dr. Bodiford’s contention that, since the complaint had not been legally commenced, Mr. Bess was not entitled to the one-year saving statute, codified at Ark. Code Ann. § 16-56-126 (1987). He asserted that the two-year statute of limitations for medical injury actions under Ark. Code Ann.§ 16-114-203 (1987), expired no later than October 28, 1996, thus barring the action. After considering Dr. Bodiford’s motion, the trial court agreed to dismiss Mr. Bess’s complaint, but entered an order of dismissal without prejudice.

Arkansas Civil Procedure Rule 3 provides that an action is commenced by filing a complaint with the clerk of the proper court. Sublett v. Hipps, 330 Ark. 58, 952 S.W.2d 140 (1997), citing Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993), and Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991). However, effectiveness of the commencement date is dependent upon meeting the requirements of Rule 4(i), which provides in pertinent part:

(i) Time Limit for Service: If service of the summons is not made upon a defendant within 120 days after filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause . . .

(Emphasis added.) Rule 4(i) must be read in light of other procedural rules, such as the statute of limitations. Green v. Wiggins, supra. For example, the “dismissal without prejudice language [in Rule 4(i)] does not apply if the plaintiffs action is otherwise barred by the running of a statute of limitations.” Id. at 489. “The touchstone for a limitations defense to a tort action is when the cause of action was commenced.” Sublett v. Hipps, supra.

In the Sublett case, Ms. Sublett filed a complaint on January 3, 1995, against two defendants to recover damages for personal injury arising from a January 8, 1992, automobile accident. She did not obtain service against one of the defendants, Mr. Berry, within 120 days after filing the complaint and failed to request an extension within that same period. Mr. Berry moved for summary judgment, claiming that the complaint was barred by the three-year statute of limitations for negligence actions under Ark. Code Ann.§ 16-56-105 (1987), since Ms. Sublett had not commenced her cause of action within the three years due to her failure to obtain service or seek an extension within 120 days of filing the complaint. The trial court granted summary judgment, and we affirmed.

In the present case, because the medical injury occurred on or before October 28, 1994, and service on Dr. Bodiford was not obtained and no extension sought within 120 days after Mr. Bess filed his complaint on June 13, 1996, the statute of limitations ran on his cause of action. Because the dismissal-without-prejudice language in Rule 4(i) does not apply if a plaintiff s action is otherwise barred by the running of a statute of limitations, the trial court should have dismissed Mr. Bess’s complaint with prejudice. Thus, for the foregoing reasons, we modify the trial court’s judgment to reflect that the dismissal of the complaint is with prejudice.

Affirmed as modified.