author: Jack Holt, Jr., Jack Holt, Jr.,

text:
    Marilyn FULLER, Administratrix of the Estate of Gary Don Jones, Deceased, and Ernest M. Jones, Deceased v. David Manuel JOHNSON and Carmen Johnson
    89-66
    781 S.W.2d 463
    Supreme Court of Arkansas
    Opinion delivered December 18, 1989
    [Supplemental Opinion on Denial of Rehearing February 20, 1990.]

      Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles, for appellant.

      McDaniel & Wells, P.A., by: Bobby McDaniel and John Barttlet, for appellees.
   Jack Holt, Jr.,

Chief Justice. On May 6,1986, the vehicle driven by Earnest M. Jones struck the rear of the vehicle driven by Manuel Johnson. Johnson was stopped to make a left turn and had his left turn signal on. The weather was clear, the road was dry, and the collision occurred during daylight. Johnson suffered back and neck injuries for which he and his wife sued to recover damages. The trial court directed a verdict in favor of Johnson on the issue of Jones’ liability, and the jury awarded $50,000.00 to Johnson and $13,000.00 to his wife. Jones died of illness prior to trial, and the administratix of his estate appeals the judgment on three points of error. We reverse and remand to the trial court.

I. DIRECTED VERDICT

Jones contends that the trial court erred in directing a verdict in favor of Johnson as to Jones’ liability. We agree and rely on Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665 (1962), to reverse and remand to the trial court.

We have held that in determining on appeal the correctness of the trial court’s action in directing a verdict for either party, evidence is viewed most favorably to the party against whom the verdict is directed; where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury. Hardeman v. Hass Co., 246 Ark. 559, 439 S.W.2d 281 (1969) (citing Barrentine v. The Henry Wrape Co., 120 Ark. 206, 179 S.W. 328 (1915)). The term “any evidence” has long been recognized to mean “evidence legally sufficient to warrant a verdict,” Hardeman, supra (citing Catlett v. Railway Co., 57 Ark. 461, 21 S.W. 1061 (1893)), and to be legally sufficient it must be substantial; substantiality is a question of law. Hardeman, supra (citing St. Louis S.W. Ry. Co. v. Braswell, 198 Ark. 143, 127 S.W.2d 637 (1939)).

Our position on a directed verdict as to negligence has been in place for some time. We held in Spink, supra, that no matter how strong the evidence of a party who has the burden of establishing negligence and proximate cause as facts may comparatively seem to be, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise.

More recently, we affirmed this position in Barger v. Farrell, 289 Ark. 252, 711 S.W.2d 773 (1986), when we stated that where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence. Barger, supra (citing Clark v. Abe, 328 Mo. 81, 40 S.W.2d 558 (1931)).

In this case, the burden was on Johnson, not on Jones, to prove the case stated in the petition. Johnson must show that he sustained an injury, that Jones was negligent, and that Jones’ negligence was the proximate cause of his injuries. Schaeffer v. McGhee, 286 Ark. 113, 689 S.W.2d 537 (1985) (citing AMI 203). Also, the fact that Jones’ vehicle struck Johnson’s vehicle does not create a presumption of negligence. Schaeffer, supra (citing St. Louis-San Francisco Ry. Co. v. Ward, 197 Ark. 520, 124 S.W.2d 975 (1939)).

Furthermore, a verdict upon issues of fact should not be directed in favor of the party having the burden of proof unless such fact is admitted, or is established by undisputed testimony of disinterested witnesses from which different minds cannot reasonably draw different conclusions. Spink, supra (citing Woodmen of the World Life Ins. Soc. v. Reese, 206 Ark. 530, 176 S.W.2d 708 (1944)). The jury is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence is uncontradicted and unimpeached. Barger, supra (citing Clark, supra).

Although Jones had died of illness prior to the trial of this case, he specifically denied, through his pleadings, Johnson’s allegations as to the circumstances surrounding the collision of their vehicles contained in Johnson’s complaint. At trial, Johnson and the investigating police officer testified; consequently, Jones was entitled to have the jury pass upon the credibility of this evidence. Applying the principles of Spink and Barger, we must reverse and remand.

II. VOIR DIRE ON INSURANCE

Jones next contends that the trial court erred in allowing Johnson to voir dire prospective jurors as to whether they believed jury verdicts affected their insurance premiums. It is well settled Arkansas law that if a party’s counsel acts in good faith, he may, in one form or another, question prospective jurors during the voir dire with respect to their interest in, or connection with, liability insurance companies. Dedmon v. Thalheimer, 226 Ark. 402, 290 S.W.2d 16 (1956).

In Dedmon, the trial court’s ruling to prohibit plaintiff’s counsel from questioning the jury panel with respect to insurance was reversed. The proposed question at issue was:

Have you ever been in the employ of any liability insurance company, or do you own any stock in any liability insurance company at the present time, or are you insured with any mutual benefit liability company where your premiums are determined upon the size of judgments given in personal injury actions for the previous year?

Id. at 403, 290 S.W.2d at 16.

Our rationale and standard for allowing this question was succinctly stated:

In cases where the defendant is covered by liability insurance, the plaintiff might want to excuse any one that he suspects may be either biased or prejudiced where insurance is involved; and he would have a perfect right to exercise a peremptory challenge for that reason, if he so desired. The test of whether counsel may ask questions of veniremen in regard to insurance is whether the questions are propounded in good faith. If counsel, in good faith, thinks that liability insurance is involved, then he may ask questions calculated to bring to light any bias or prejudice a venireman may have for or against insurance companies.

Id. at 403-04, 290 S.W.2d at 17.

In King v. Westlake, 264 Ark. 555, 572 S.W.2d 841 (1978), we considered as proper the following questions asked by plaintiffs counsel:

Q It is improper for either side to imply or suggest that the defendant does or does not have insurance, and the questions I will now direct to you have nothing to do with whether or not the defendant has insurance. The questions I will ask concern your insurance premiums, not insurance in this case. How many of you believe that jury verdicts affect insurance premiums?
Q Your insurance premiums may not be affected greatly one way or the other, but will not the verdicts that you render have some effect on your insurance rates?
Q The question I have been building up to is this: Assuming that the verdict you render could cost you a little more or a little less money on your insurance premium, can you listen to the testimony, the statements of counsel, and the instructions and then put aside the financial interest you have in this case because of your insurance premiums and render a verdict?

784 S.W.2d 165

Id. at 559-60, 572 S.W.2d at 844.

Prior to these questions, a foundation had been laid by showing that for some time preceding the trial date a number of liability insurance companies had run advertisements in nationally published periodicals with the purpose of informing jurors in general that they were affected by the verdicts they rendered in that such verdicts resulted in increased premiums.

In this case, Johnson’s counsel, without laying any foundation, read the questions in issue directly from King. This was wrong and contrary to our holding in King. Questions of this nature must be supported by a proper foundation.

III. POLICE OFFICER’S TESTIMONY

Jones also alleges that the trial court erred in allowing the investigating police officer, who was not an eyewitness to the accident, to testify that a contributing factor to the accident was that Jones was “following too close.”

Jones did not object to this statement at the time of trial, and we will not consider this point for the first time on appeal. Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988).

As a result, we reverse and remand to the trial court in accordance with this opinion.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING FEBRUARY 20, 1990

Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles, for appellants.

Bobby McDaniel, for appellees.

Jack Holt, Jr.,

Chief Justice. The appellees (Johnsons) request a rehearing for two reasons: 1) that the standard for a directed verdict has been changed by this opinion, and 2) that this court erred in finding that the Johnsons conducted an improper voir dire by holding that King v. Westlake, 264 Ark. 555, 572 5. W.2d 841 (1978), required them to establish an evidentiary foundation before asking the questions in issue concerning insurance.

The Johnsons initially contend that our decision essentially abolishes directed verdicts in favor of a plaintiff in negligence cases by holding that so long as a defendant files an answer denying liability, a directed verdict is not appropriate even though no evidence is presented by the defendant.

In our majority opinion, we relied on Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665 (1962), and found that the trial court erred in directing a verdict in favor of the Johnsons as to Jones’s liability. The Johnsons point to the rule in Spink and proceed to suggest that we did not follow it. That test is as follows:

A verdict upon an issue of fact should not be directed in favor of the party who has the burden of proof with respect thereto, unless such fact is admitted, or is established by the undisputed testimony of one or more disinterested witnesses and different minds cannot reasonably draw different conclusions from such testimony.

(Emphasis added.)

To the contrary, we followed the dictates of Spink and its progeny. Granted, we did not embellish on the evidentiary aspects of the case, perhaps giving the appearance that we ignored the testimony and merely relied on the fact that Jones filed an answer that contained a denial of the circumstances surrounding the collision as pleaded in Johnson’s complaint.

Such is not the case. In our opinion, we did not mention that the officer, whom Johnson described as a disinterested witness, was not an eyewitness to the accident. Nor did we note that the officer’s claim that Jones had been “following too close” was in conflict with Johnson’s own testimony. Johnson testified that he had looked in his rearview mirror and had seen an eighteen-wheeler in the outside lane, but that he never saw Jones’s car. However, all of these facts were considered in passing judgment.

Additionally, the officer’s testimony, concerning Jones’s remarks about failing to get over far enough, was far from an admission of negligence by Jones. Unquestionably, by Johnson’s own testimony, an eighteen-wheeler was present at the scene immediately before the time of the accident and, had this matter been sent to the jury, the jury may well have surmised that the eighteen-wheeler may have contributed to the accident. In any event, the officer was not an eyewitness to the accident, nor did his testimony establish negligence on Jones’s behalf as a matter of law.

A motion for a directed verdict is a challenge to the sufficiency of the evidence and is proper only when no issue of fact exists. Boren v. State, 297 Ark. 220, 761 S.W.2d 885 (1988).

In this case, there is evidence of record upon which a rational jury could “reasonably” draw different conclusions from the testimony of the various witnesses and, for this reason, the matter should have been submitted to a jury.

The Johnsons also argue that this court erred in finding that their voir dire, concerning the effect of jury verdicts upon insurance premiums, was not proper since it was not supported by a proper foundation.

We resolved this point of error against the Johnsons and clearly stated that:

In this case, Johnson’s counsel, without laying any foundation, read the questions in issue directly from King. This was wrong and contrary to our holding in King. Questions of this nature must be supported by a proper foundation.

The Johnsons’ concerns are repetitive of their original argument on appeal, and we have held that such repetition is an inappropriate subject for a petition for rehearing. Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987).

The petition for rehearing is denied.


source: Caselaw Access Project

author: Jack Holt Jr.,

license: Public Domain

text:
    Mitchell Dewayne JENKINS v. STATE of Arkansas
    CR 89-217
    781 S.W.2d 461
    Supreme Court of Arkansas
    Opinion delivered December 18, 1989
    [Rehearing denied February 12, 1990.]

      Daniel D. Becker, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Jack Holt Jr.,

Chief Justice. The appellant, Mitchell Jenkins, was charged by information with the offense of DWI 4th Offense, and he initially pled not guilty. Prior to trial, Jenkins filed a “motion in limine to suppress use of prior [DWI] conviction for lack of proper waiver of counsel.” Thereafter, the trial court found that Jenkins had intelligently, knowingly, and voluntarily effected the waiver of counsel.

Later, Jenkins pled guilty to the charge of DWI 4th Offense pursuant to Ark. R. Crim. P. 24.3(b), under the assumption that it allowed him to enter a conditional plea of guilty by preserving his right to seek appellate review of the trial court’s denial of his motion to suppress a prior DWI conviction.

Jenkins was sentenced to three years imprisonment in the Arkansas Department of Correction, a $900.00 fine, $302.55 court costs, three year suspension of driving privileges, and inpatient treatment at the Quapaw House.

On appeal, Jenkins asserts that the trial court erred in finding an effective waiver of counsel. We find that the judgment being appealed is not encompassed within Rule 24.3(b). Consequently, this court is without jurisdiction to hear this appeal.

Arkansas R. Crim. P. 36.1 provides, in pertinent part, that “[e]xcept as provided by Rule 24.3(b) there shall be no appeal from a plea of guilty or nolo contendré [contendere].” Rule 24.3(b) provides as follows:

With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendré [contendere], reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his pleas.

Jenkins’s motion in limine to suppress the use of a prior conviction as evidence is distinguishable from the suppression of evidence contemplated by Rule 24.3(b). A motion to suppress evidence presupposes that the evidence was illegally obtained. Here, we are simply dealing with the admissibility of evidence, rather than “illegally obtained” evidence. For illustrations of illegally obtained evidence, see Ark. R. Cr. P. Rule 16.2.

In a somewhat analogous case, State v. Russell, 271 Ark. 817, 611 S.W.2d 518 (1981), we addressed the issue of appellate jurisdiction on an interlocutory appeal by the State from a pretrial order denying the admission of a deposition. In Russell, the trial court held that the deposition of the State’s witness who died prior to trial was not admissible and the State brought an interlocutory appeal, pursuant to Ark. R. Cr. P. 16.2(d) and 36.10, contending that the deposition was admissible. We held that the order appealed from dealt only with the admissibility of evidence in the form of a deposition and not with the suppression of evidence and that the pretrial order was, as a result, not appealable.

In this case, too, we are presented with the admissibility of Jenkins’s prior DWI conviction and not with the suppression of evidence as contemplated by Rule 24.3(b).

Appeal dismissed.


author: Darrell Hickman, Justice.

text:
    Gary D. DOOLEY v. HOT SPRINGS FAMILY YMCA, Hill Construction Co., Inc., and CMM Architects, Inc.
    89-221
    781 S.W.2d 457
    Supreme Court of Arkansas
    Opinion delivered December 18, 1989

      The McMath Law Firm, P.A., by: James Bruce McMath, for appellant.

      Anderson & Kilpatrick, by: Overton S. Anderson and Randy P. Murphy, for appellee Hill Construction Co., Inc.

      Davidson, Horne & Hollingsworth, A Professional Associ

      ation, by: Cyril Hollingsworth, for appellee CMM Architects, Inc.
   Darrell Hickman, Justice.

The question is one of statutory construction. The legislature undoubtedly made a mistake when it created an exception to the usual four year statute of limitations applicable to suits for personal injuries caused by the defective design of construction projects. An exception was intended to be made for those injured during the fourth year after substantial completion of such a project, allowing an extra year to bring suit. The legislation actually stated that an exception was being made for those injured during the third year after substantial completion of construction.

To give the statute its literal meaning would void the obvious intent of the legislature. The trial court gave the statute its literal meaning and denied the appellant his right to bring suit. We reverse that judgment and remand the case for further proceedings.

The facts are undisputed. Gary D. Dooley, the appellant, broke his neck when he dove into the swimming pool at the Hot Springs Family YMCA. As a result he became a quadriplegic. He sued the YMCA as well as Hill Construction Company, who built the pool and CMM Architects, who designed it.

The accident occurred August 8, 1987. Suit was filed July 26, 1988. The trial judge granted a motion for summary judgment filed by the appellees, Hill Construction Company and CMM Architects, because of the statute of limitation applicable to such suits.

The basic statute, Ark. Code Ann. § 16-56-112(b)(1) (1987), is a four year statute of limitations, and it reads:

No action in tort or contract, whether oral or written, sealed or unsealed, to recover damages for personal injury or wrongful death caused by any deficiency in the design, planning, supervision, or observation of construction or the construction and repairing of any improvement to real property shall be brought against any person performing or furnishing the design, planning, supervision, or observation of construction or the construction and repair of the improvement more than four (4) years after substantial completion of the improvement.

However, an exception is made in the very next provision of the statute, Ark. Code Ann. § 16-56-112(b)(2), and it reads:

Notwithstanding the provisions of subdivision (b)(1) of this section, in the case of personal injury or an injury causing wrongful death, which injury occurred during the third year after the substantial completion, an action in tort or contract to recover damages for the injury or wrongful death may be brought within one (1) year after the date on which injury occurred, irrespective of the date of death, but in no event shall such an action be brought more than jive (5) years after the substantial completion of construction of such improvement. (Emphasis added.)

In this case substantial completion of the project occurred in September, 1983. The injury occurred during the fourth year, not during the third year after completion. Therefore, if the literal meaning of § (b)(2) is applied, Dooley’s claim must be dismissed as untimely, because it was filed more than four years after substantial completion. That was the trial judge’s decision and we appreciate his reluctance to read into the act that the legislature actually meant to say “during the fourth year” instead of “during the third year.” But that has to be the legislature’s intent. Because, obviously, if a person is injured during the third year after completion and has only one year from that date to file suit, then suit must be filed within four years after substantial completion. That is what the general limitation is for all such actions. There would be no exception if the legislation is read that way. The intention of the legislature was to honor personal injury claims occuring during the fourth year after substantial completion, otherwise there would be no purpose in making five years the outside limit.

When we interpret legislation, we first have to decide if it is clear or ambiguous. If it is clear, we must apply its clear meaning. Chandler v. Perry-Casa Public Schools Dist. No. 2, 286 Ark. 170, 690 S.W.2d 349 (1985). But if it is ambiguous, then we must decide what the legislature intended. Woodcock v. First Commercial Bank, 284 Ark. 490, 683 S.W.2d 605 (1985).

We have said on several occasions that it is our duty to give effect to the true intent of the general assembly even though such intent has not been clearly expressed by the language used. Woodcock v. First Commercial Bank, supra; Steele v. Murphy, 279 Ark. 235, 650 S.W.2d 573 (1983).

In order to give effect to the real intention, we may correct errors by rejecting certain words and substitute others to reconcile apparent inconsistencies. Langford v. Brand, 274 Ark. 426,626 S.W.2d 198 (1981). In Carters. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970), we examined the constitutionality of this statute but did not address the issue raised in this case. We did, however, intentionally or otherwise, say:

This Act only cuts off action after four years. But, even then, if an accident or injury occurs before the expiration of that four year period, it may still be brought within an additional 12 months against those furnishing the design, planning, supervision or observation of construction and repairing of any improvement to real property.

We feel the legislature simply made a mistake and used “third” instead of “fourth” and correct it without hesitation. To do otherwise would be to erase § (b)(2).

Reversed and remanded.


author: John I. Purtle, Justice.

text:
    Clifford CORDES v. OUTDOOR LIVING CENTER, INC., and Richard Shilling
    89-258
    781 S.W.2d 31
    Supreme Court of Arkansas
    Opinion delivered December 18, 1989

      The Niblock Law Firm, by: Nancy L. Hamm, for appellant.

      Pettus Law Firm, by: C. Alan Gauldin, for appellee.
   John I. Purtle, Justice.

This is an appeal from the trial court’s granting of the appellee’s motion for summary judgment in an action seeking damages for malicious prosecution, abuse of process, and outrage. For reversal, the appellant argues that the trial court erred in granting summary judgment because there were genuine issues of material fact unresolved in relation to all three counts in the appellant’s complaint. The trial court correctly found that there was no genuine issue of any material fact relating to any of the three counts in the complaint.

On October 17,1984, the appellant and his wife purchased a camper trailer from the appellees, Outdoor Living Center, Inc., and Richard Shilling under an installment sales contract. The purchasers made their living through truck driving and construction work, which carried them into many different parts of the country. At the time of the purchase, the appellant and his wife lived in Knoxville, Arkansas. The transaction was financed through Arkansas Valley Bank for a period of 36 months. The payments were made from the date of the purchase until May 1986, five months short of the end of the payment period.

After the purchase, the appellant alleged, he began having problems with the vehicle, including heating, lights, refrigeration, and the hot water tank.

The appellant’s last payment on the account was in May 1986, when his wife sent a check to Arkansas Valley Bank drawn on the Bank of Lincoln in Lincoln, Arkansas. This check represented payments for April and May of 1986, and the return address on the envelope was in the care of Dean Kilgore, the appellant’s brother-in-law, with whom he was staying at the time in Lincoln. During this period, the appellant and his wife had moved several times. Whether the appellees and the bank were notified is disputed.

Apparently it was the appellant’s intention to discontinue making payments, thereby forcing the appellees to make repairs on the vehicle. In any event, the appellant’s failure to make payments prompted the bank to order the appellees to repurchase the loan on August 18, 1986.

Shilling attempted to contact the appellant for payment but was unable to locate him at his Knoxville address; in fact the appellee found the residence vacant and the phone disconnected. He then contacted the Pope County Sheriff and the prosecutor. Warrants for the arrest of the appellant and his wife on charges of defrauding a secured creditor were issued on November 10,1986.

At some point in January or February of 1987, the camper trailer, which had been parked at Dean Kilgore’s house in Lincoln, was stolen. The insurer paid off the balance owed on the vehicle.

More than six months later, on July 8, 1987, the appellant was stopped for a traffic violation in Fort Smith. At that time, it was discovered that the Pope County warrant for his arrest was outstanding. The appellant was taken to jail and held for two hours until he posted a $2,500 bond. The prosecuting attorney subsequently dismissed the charge.

On February 16,1988, the appellant filed suit for malicious prosecution, abuse of process, and outrage. The appellees moved for a summary judgment on July 15,1988. A hearing was held on the motion on February 10, 1989, and summary judgment was granted on March 27, 1989.

Arkansas Rules of Civil Procedure, Rule 56, provides for summary judgment under certain conditions. Clearly, the motion in the present case was timely and in proper form. Rule 56(c) provides that the court shall render a summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue concerning any material fact and that the moving party is entitled to judgment as a matter of law. The burden of sustaining a motion for a summary judgment is always the responsibility of the moving party. Rowland v. Gastroenterology Associates, P.A., 280 Ark. 278, 657 S.W.2d 536 (1983). On a motion for summary judgment, the evidence must be viewed in the light most favorable to the opposing party.

In disposing of this case, it is necessary for us to consider separately the three elements of the allegations in the complaint. We first address the issue of malicious prosecution. In the case of Farm Service Cooperative, Inc. v. Goshen Farms, Inc., 267 Ark. 324, 590 S.W.2d 861 (1979), this court quoted with approval from an Arkansas Law Review note on malicious prosecution:

In an action for malicious prosecution the court concentrates on the facts before the action was commenced, while in an action for abuse of process, the question is whether the use or application of legal process, after it was issued, was one for which it was designed.

22 Ark. L. Rev. 340 at 356, quoted at 267 Ark. at 337, 590 S.W.2d at 868.

Lack of probable cause and malice are essential elements of the tort of malicious prosecution. The two terms are not convertible and neither necessarily follows as a legal presumption from the establishment of the other. Farm Services Cooperative, Inc. v. Goshen Farms, Inc. Malice may be inferred from lack of probable cause, but on the other hand, lack of probable cause may not be inferred from malice. Malvern Brick & Tile Co. v. Hill, 232 Ark. 1000, 342 S.W.2d 305 (1961). Probable cause is determined by the facts and circumstances surrounding the commencement and continuation of the legal action.

Probable cause for prosecution must be based upon the existence of facts or credible information that would induce the person of ordinary caution to believe the accused person to be guilty of the crime for which he is charged. “Ordinary caution is a standard of reasonableness, which presents an issue for the jury when the proof is in dispute or subject to different interpretations.” Parker v. Brush, 276 Ark. 437, 637 S.W.2d 539 (1982). See also Malvern Brick & Tile Co. v. Hill.

At the time the warrant for the appellant’s arrest was issued, he was several months behind on the trailer payments and had moved, disconnecting his telephone and leaving no forwarding address. The bank had required the appellees to repurchase the contract. Shilling did not know the appellant’s current address. The appellees repurchased the contract on August 8, 1986, but did not go to the authorities until November 10,1986. The information possessed by the appellees was credible and sufficient to cause a person of ordinary caution to decide that probable cause existed to believe that the appellant had committed the act for which he was charged.

Sometime in the spring of 1987, the balance of the amount owed on the trailer was paid to the appellees by the bank, which had collected from the insurance company for the stolen trailer. The appellees made no attempt to notify the prosecutor that they had received the balance of the debt on the purchase price.

Malice has been defined as “any improper or sinister motive for instituting the suit.” Foster v. Pitts, 63 Ark. 387, 38 S.W. 1114 (1897). Thus, even though a party holds great malice toward another party, he would, nevertheless, have a defense for malicious prosecution, provided probable cause existed for bringing the original charges. In other words, while malice might be admitted, a successful defense could still be established against a suit for malicious prosecution. Such an action cannot be maintained upon malice alone. Even if malice in this instance could be inferred, there does not appear to have been any improper or sinister motive on the part of the appellees for instituting the charges.

The appellee denied causing the warrant to be issued, and in fact, denied that he even knew that the appellant had been arrested. Even if the appellee knew of the arrest, it does not take anything from the facts which supported probable cause for issuance of the warrant. With a sound basis for probable cause and no strong evidence of malice, the charge of malicious prosecution could not succeed. Therefore, the trial court correctly granted the summary motion on this issue.

' Abuse of process was considered by this court in the case of Smith & McAdams Inc. v. Nelson, 255 Ark. 641, 501 S.W.2d 769 (1973). In that opinion we quoted with approval from Prosser, Law of Torts § 121 (4th Ed. 1971), the three requirements giving rise to a cause of action for abuse of process:

(1) a legal procedure set in motion in proper form, even with probable cause, and even with ultimate success, but,
(2) perverted to accomplish an ulterior purpose for which it was not designed, and (3) a wilful act in the use of process not proper in the regular conduct of the proceeding.

In that case and others we have determined that abuse of process is something in the nature of extortion or coercion. The key to this issue is the improper use of process after issuance, even when issuance has been properly obtained. In Smith & McAdams, Inc., we stated: “The test of process abuse is not whether the process was originally issued with malice and without probable cause. The remedy in that situation would be an action for malicious prosecution which was asserted in the case at bar. Here we have no abuse or coercive act subsequent to the issuance of the warrant.” 255 Ark. at 644, 501 S.W.2d at 770.

We have previously stated that there was probable cause for the issuance of the Pope County warrant in the first place. It does not matter, when considering abuse of process, whether the legal procedure set in motion was indeed founded upon probable cause because the second requirement is that the procedure must have been perfected to accomplish an ulterior purpose for which it was not designed. There is no dispute that the charge in the present case was founded upon a provision of the law aimed at people who abscond with property not paid for. The fact that the property was later paid for by the insurance company has no bearing on the charge for which the appellant was arrested. We are concerned here with the cause for the appellant’s arrest and the use of the process after it was commenced.

We have found nothing in the record showing a willful act on the part of the appellees not in keeping with the regular conduct of such proceedings. Therefore, we find no proof or evidence in the record that the process in this case was either perverted to accomplish an ulterior purpose or tainted by a willful act on the part of the appellees in the use of the process after issuance for their own benefit. The trial court correctly granted summary judgment on the issue of abuse of process.

The appellant relies particularly on the dissent in Headrick v. Wal-Mart Stores, Inc., 293 Ark. 433,738 S.W.2d 418 (1987). However, as he correctly observes, the dissent was on a point apparently not considered in the majority opinion. The court in Headrick disposed of the issue of malicious prosecution in the following manner: “Having failed to set forth facts upon which a claim for malicious prosecution could be based, Mr. Headrick cannot complain that the court found no disputed facts in relation to that claim and granted summary judgment.” 293 Ark. at 243, 738 S.W.2d at 420. Headrick is further distinguishable on the facts because the warrant was not issued against the appellant in that case until after he had paid off the hot check. In the present case, the warrant was issued long before the balance of the debt was paid.

Finally, we consider the allegation of the tort of outrage. Our most recent decision concerning this tort may be found in Deason v. Farmers & Merchants Bank, 299 Ark. 167, 771 S.W.2d 749 (1989). There we quoted the case Counce v. M.B.M. Co., Inc., 266 Ark. 1064, 597 S.W.2d 92 (1980), in which this court adopted the tort of outrage. In Counce, we stated that outrage is committed under the following circumstances:

One who, by extreme and outrageous conduct and without privilege, causes severe emotional distress to another is subject to liability for such emotional distress even though no bodily harm may result. However, in order for a plaintiff to prevail in a case for liability under this tort, four elements must be established. It must be shown (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct, . . . ; (2) that the conduct was ‘extreme and outrageous’, ‘utterly intolerable in a civilized community’, . . . ; (3) that the actions of the defendant were the cause of the plaintiffs distress,. . .; and (4) that the emotional distress sustained by the plaintiff was ‘severe’ and of a nature ‘that no reasonable man could be expected to endure it.’ [266 Ark. at 1068, 597 S.W.2d at 94, quoted at 299 Ark. at 173, 771 S.W.2d at 753.]

The tort of outrage is not easily established; merely describing conduct as outrageous does not make it so. Clear-cut proof is necessary to establish the four elements ennumerated in Deason. See Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982). We are of the opinion that summary judgment was proper because the plaintiffs allegation on the tort of outrage, even if proven, did not rise to a level sufficient to support a claim for damages for the tort of outrage.

Affirmed.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    Jim HOOD and George Batzos v. CENTRAL BUSINESS IMPROVEMENT DISTRICT NO. 1 of the City of Pine Bluff
    89-290
    781 S.W.2d 35
    Supreme Court of Arkansas
    Opinion delivered December 18, 1989

      Evans Benton, P.A., for appellant.

      Ramsay, Cox, Bridgforth, Gilbert, Harrelson & Starling, for appellee.
   Robert H. Dudley, Justice.

This is a taxpayers’ suit to enjoin the appellee central improvement district from repairing and constructing sidewalks, the purpose for which it was formed. Appellants argue a number of defects in the organization of the district, but only one need be discussed.

In order to form a central business improvement district, the owners of two-thirds of the assessed value of real estate within the proposed district must petition the city council for the creation of the district. Ark. Code Ann. § 14-184-108 (1987). After that is done, and after public notice and hearing, the city council can pass an ordinance creating the district. The appellants argue that the district was not validly created because the petition to the city council did not contain the signatures of the owners of two-thirds of the assessed value of real estate within the district. The argument is meritorious.

At the time the ordinance was passed the total assessed value of real estate in the district was $3,279,080.00, and two-thirds of that total is $2,186,053.33. The petition contained signatures representing $2,321,940.00 in assessed value, or only $135,886.67 more than necessary. We discuss only one of the purported owner’s signatures since it represents $191,645.00 in assessed value, or more than enough to invalidate the organization of the district.

The statute requires that the name of the owner be signed to the petition. The owner’s name can be signed by an agent, but only when the agent signs as an agent and the name of the owner is disclosed. Colquitt v. Stevens, 111 Ark. 314, 163 S.W. 1141 (1914). In this case, a tract having a value of $191,645.00 was owned by the Arkansas Holding Company, but the name of that company does not appear on the petition. Instead, the name of “Flake, John L. TR” is printed as owner of the tract. To the right of the trustee’s name is the signature of Charles R. Reed. Thus, the name of the owner, Arkansas Holding Company, was not signed to the petition in any manner, and the assessed value of the land owned by the Arkansas Holding Company cannot be counted as part of the petition. Consequently, the district was not validly formed.

Reversed and remanded for entry of decree consistent with this opinion.

Hickman, Purtle, and Newbern, JJ., concur.

John I. Purtle, Justice,

concurring. I concur for the purpose of stating that, in my opinion, many of the signatures on the petition were improper and inadequate. I would hate to see the same mistake occur again and the case reversed when simple precautions can prevent such a waste of time.

In matters relating to the formation of improvement districts requiring the signature of the majority of the property owners, this court has spoken many times, with clarity, on the right of one person to sign for another or on behalf of a corporation. In Ahern v. Board of Improvement Dist.No. 3 of Texarkana, 69 Ark. 68, 61 S.W. 575 (1901), this court held that when property is held by husband and wife as tenants in common, both of them must sign to include all of the property in a district. If only one signs, only half of the value may be counted. This opinion has continued in force down through the years.

In Gardner v. Bullard, 241 Ark. 75, 406 S.W.2d 368 (1966), this court held that a spouse’s signature on a petition was essential to her becoming a valid objector to a district where the property was held as an estate by the entirety. It could not be shown at trial that the wife had ratified the action of her husband in signing as her agent. The Gardner opinion flatly stated that it did not matter whether the interest of a wife was by the entirety or in common, or even whether she was a partner — the principle of requiring her signature remained the same. The Gardner opinion went on to point out that if a husband signed his wife’s name to the petition, without her presence, she could have furnished proof at the hearing that she had ratified the signature or that it had been authorized. However, when he did not purport to sign her name, it could not be shown to have been ratified at a hearing on the contest of the formation of the district.

A lessee cannot sign for the owner of the property in the absence of some showing of agency. Smith v. Improvement Dist. No. 14 of Texarkana, 108 Ark. 141, 156 S.W. 455 (1913). Since the lessee cannot sign for the owner of the property, and no person can sign another person’s name or corporation’s name without authority, it appears to me that the names of the Platwell Properties and the properties of the two banks are not properly signed in this case. It might also be noted that if a railroad right-of-way runs across property, it is a part of the real estate and subject to assessment. Fry v. Poe, 175 Ark. 375, 1 S.W.2d 29 (1927).

Hickman and Newbern, JJ., join.


text:
    Richard SCHRADER and Betty Schrader, Individually as Next Friend of David Schrader v. James Edward BELL and Barbara Bell
    89-138
    781 S.W.2d 466
    Supreme Court of Arkansas
    Opinion delivered December 18, 1989

      Pryor, Barry, Smith & Karber, by: Thomas B. Pryor, for appellants.

      Gary D. Person and Bill R. Perceful, for appellees.
   Robert H. Dudley, Justice.

The jury returned a defendant’s verdict in this case involving a car wreck at an intersection. The trial court granted the plaintiffs motion for a new trial. We reverse and dismiss.

In 1982, we amended ARCP Rule 59(a)(6) to state that a trial judge can set aside a jury verdict only when it is “clearly contrary to the preponderance of the evidence. . . .” Clayton v. Wagnon, 276 Ark. 124, 633 S.W,2d 19 (1982). The trial judge cannot substitute his view of the evidence for that of the jury. Bryant v. Sorrells, 293 Ark. 276, 737 S.W.2d 450 (1987). If the trial judge denies the motion for a new trial, we will affirm if there is any substantial evidence to support the verdict. If he grants the motion for a new trial, we will affirm if he did not abuse his discretion in finding that the verdict was clearly against the preponderance of the evidence. Brown v. Wilson, 282 Ark. 450,669 S.W.2d 6 (1984). In this case the trial judge abused his discretion because the jury’s verdict was not clearly against the evidence.

Appellant Scott Schrader, a sixteen-year-old high school student who had gone home for lunch, got into his father’s Chevrolet Malibu to drive back to school. He had not driven that particular car in four weeks, but when he last drove it, the brakes worked satisfactorily. According to appellant, he left home and started down a rather long hill at about 30 or 35 miles per hour in a 30 mile per hour zone. The road curved, and he began to apply his service brakes. They worked satisfactorily, and he was unaware they might later fail. He continued to slow down because there was a stop sign at the intersection at the bottom of the hill. When he was 10 to 15 feet from the stop sign, and going 10 to 15 miles per hour, he began to apply more pressure to the brake pedal. He had both feet on the brake pedal. Suddenly, and without warning, the pedal went to the floor, and the service brakes failed. Appellant, headed in an easterly direction, ran past the stop sign and into the intersection. He testified that, as he entered the intersection, he took evasive action by swerving to the right, but could not keep from running into appellee’s pick-up truck. He stated that his testimony was substantiated by the physical evidence which does show that the far left part of appellant’s front bumper struck appellee’s right door.

Appellee was driving his pickup truck in a southerly direction on the intersecting road. He testified that his speed was about 35 miles per hour in a 40 mile per hour zone. He stated that as he approached the intersection he noticed that appellant, who was going 15 to 20 miles per hour, was excited and trying to do something like apply the brakes, but it was obvious appellant’s car was going to ram appellee’s truck. Appellee swerved into the left lane, and appellant’s car hit the right side of his truck. Appellee did not state whether appellant attempted to swerve his car or take any other evasive action to avoid the wreck. He was asked a question which was designed to elicit such testimony, but it did not do so. The question and answer were:

Q. Did you see the defendant [appellant] do anything to try to avoid this wreck?
A. Er — he appeared to be doing something in the car, I’m not sure if he was — er—if he — if he was just excited or scared or what, but he appeared to be applying the brake.

Appellant put on evidence by an expert mechanic witness who testified that he examined the service brakes on appellant’s car after the accident and found that the master cylinder had blown out the seals on both ends. He stated that on rare occasions a master cylinder without separate pistons, like the one on appellant’s car, can blow out both seals and, when that happens, the service brakes can go out without warning. Further, there would be no leakage or puddling on the surface under the car to warn a driver who is about to enter the car because the leakage is internal. Also, the hydraulic braking system is a pressure system and when the seals are out there is no pressure resistance. It is like “pushing a pencil through a glass of water — there wouldn’t be any resistance there.” Additionally, the appellee did not request an instruction on the duty to maintain brakes in good working order, Ark. Code Ann. § 27-37-501 (1987), or on the speed limit applicable to appellant’s car.

The jury heard the above evidence and the instructions by the trial court and determined that the appellant was not negligent. The trial court granted a new trial because he felt the appellant (1) failed to operate his vehicle in a proper manner, (2) failed to maintain proper control, (3) failed to take evasive action, and (4) failed to react in a1 proper manner. In so ruling, the trial court abused its discretion.

There was no showing that the accident was caused by appellant’s failure to operate his vehicle in a proper manner. Appellant testified that at the top of the hill he was driving 35 miles per hour, and another time he said he was driving 30 miles per hour at that point. The speed limit there was 30 miles per hour. However, he stated he had reduced his speed halfway down the hill to 10 to 20 miles per hour. Appellee stated that appellant was only going 15 to 20 miles per hour, so speed was not a factor which contributed to the accident. There was no suggestion that appellant was out of his lane or violating any of the rules of the road immediately before his brakes failed. There was no instruction on failure to maintain brakes. There was no showing that appellant was at fault in failing to anticipate an abrupt breakdown in his service brake. There was no showing that appellant failed to swerve or take other evasive action.

The appellant only attempted to use his service brakes; he did not attempt to use his emergency brake. At first blush this might seem negligent. However, appellant’s service brake failed when he was 10 to 15 feet from the intersection, and he was traveling at a speed of 10 to 20 miles per hour. At 20 miles per hour, he would be traveling 29.33 feet per second, and at 10 miles per hour 14.67 feet per second. Thus, from the time his service brakes failed and he was applying pressure with both of his feet on the brake pedal, he had less than a second to realize what had happened, react, take his left foot off the service brake pedal, get his left foot on the emergency brake pedal, and apply pressure.

Under these circumstances, the trial judge abused his discretion in holding that the jury verdict was clearly against the preponderance of the evidence.

Appellee asks us to affirm the trial judge’s ruling by applying the standard of strict liability. See Stevens v. Wood Sawmill, Inc., 426 N.W.2d 13 (S.D. 1988). We do not address the argument. Appellee is asking for affirmative relief, as he is asking for a finding of liability against appellant based on strict liability. He did not make such a request at trial. He did not cross-appeal. The jury was instructed, without objection, that a finding of negligence was necessary. Accordingly, we do not consider applying the standard of strict liability in this case.

Reversed and dismissed.

Purtle, J., dissents in part and concurs in part.

John I. Purtle, Justice,

dissenting in part and concurring in part. I am pleased to see that the majority has, somewhat belatedly, joined my dissent in Penny v. Phillips, 298 Ark. 481, 769 S.W.2d 4 (1989). The similarities between this case and Penny, decided a mere seven months ago, are striking. Penny involved a teenage-driver who didn’t see a curve and skidded off a road into a ditch, injuring a passenger. The driver had not been speeding, drinking, or violating any highway rule at the time of the accident, and the jury found no negligence on his or his parents’ part. The trial court ruled that the verdict was clearly against the preponderance of the evidence, and this court affirmed his order for a new trial, noting: “[W]here the trial court has ordered a new trial, it is more difficult to establish an abuse of discretion than when a new trial is denied.” 298 Ark. at 483, 769 S.W.2d at 5.

The language and reasoning in Penny is weighted almost totally toward the trial court’s discretionary powers. Little attention is paid to the jury’s function as finder of fact or to the actual application of the amended clause in ARCP Rule 59(a)(6) — “clearly against a preponderance of the evidence.” As I stated in my dissent in Penny: “The evidence set out in the opinion is sufficient to establish that the facts were fairly evenly divided, thereby presenting a jury question. ... It seems to me that the trial court substituted its judgment for that of the jury.”

298 Ark. at 484, 769 S.W.2d at 6.

The Penny decision is an anomaly in the law as it has developed since our holding in Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982). It overturned seven years’ worth of opinions interpreting and applying the 1982 amendment to Rule 59(a)(6) and, as I pointed out in my dissent, “reverted to the rule as it existed prior” to Clayton and the amended rule. The majority opinion in the present case makes no attempt to come to terms with the peculiarity of Penny. Now, after I have come to accept the majority decision in Penny as the definitive word on this issue, I find that a decision has been reached in this case totally at odds with the majority’s view as expressed on May 1 of this year. I am gratified that the majority now agrees with my dissent in Penny and with the court’s holdings in Clayton v. Wagnon and Wilson v. Kobera, 295 Ark. 201, 748 S.W.2d 30 (1988), among others.

Still, however, the question remains: If the decision in Penny was right, how can the decision in this case — -and the body of cases from Clayton to Penny — also be right? The concluding paragraph in Penny is squarely on point with the present case and deserves to be quoted:

Having examined the evidence carefully, we conclude that the appellants have failed to show that the trial court’s discretion was abused. In addition to having heard the testimony in its entirety, the trial court had the benefit of photographs and a diagram of the accident scene which are not in the abstract. There is no contention that Dana Phillips was in any manner at fault and the testimony of Chris Penny, however one may choose to interpret it, points unerringly to a failure to maintain a proper lookout or a failure to maintain proper control over his vehicle as proximate causes of the collision.

298 Ark. at 483-484, 769 S.W.2d at 5-6. In this case the trial court, like the Penny court, had the benefit of photographs and diagrams, and was able to observe the demeanor of the parties as they testified. Penny changed the law, and we are changing the law again today. I can only assume that we have implicitly overruled Penny and restored the Clayton line of cases as our standard.

I am glad this court has come around so soon to my way of thinking. I can now retire with a sense that my opinions have, after all, sometimes had an effect. I only hope that in the future my dissents relating to the Bill of Rights and other constitutional issues will have an equal impact.


author: Steele Hays, Justice. John I. Purtle, Justice,

text:
    Steve GIBSON v. STATE of Arkansas
    CR 89-131
    781 S.W.2d 469
    Supreme Court of Arkansas
    Opinion delivered December 18, 1989

      Roger T. Jeremiah, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This is an appeal from the denial of a petition for post-conviction relief pursuant to A.R.Cr.P. Rule 37. The appellant raises three points for reversal: (1) ineffective assistance of counsel; (2) no factual basis for the guilty plea; and (3) failure of the state to adhere to its promise to allow the appellant to serve his time in Oklahoma. We find no merit in these arguments.

The appellant, Steve Gibson, and a co-defendant, Carlos Humphrey, went to a convenience store and service station at about 3:30 a.m. on June 6, 1986. The record reveals that the appellant stayed outside near the gasoline pumps, allegedly for the purpose of filling a small container with gasoline to prime the fuel pump on a stalled automobile. Humphrey went inside and attempted to buy beer. Upon being refused because of the late hour, he pulled a handgun, saying “I’ll take the money instead,” and robbed the two employees.

During the time Humphrey was inside the store, a witness sitting in a parked truck (a Mr. Barnard) observed the appellant about thirty feet from the store window appearing to be looking in. Two other persons, co-defendants Liles and Yendell, had remained in an automobile a short distance from the convenience store. When one of the clerks shouted for the police, appellant and Humphrey broke into a run and were seen getting into an automobile which was waiting with lights off and motor running. All four were arrested several hours later and charged with aggravated robbery. The appellant and Humphrey were also charged as felons in possession of firearms, with theft of property and with being habitual criminals.

The co-defendants, Liles and Yendell, were handled separately by the state. Yendell was released on bond and disappeared. Liles obtained the services of private counsel and received a suspended sentence. The public defender was appointed to represent the appellant and Humphrey.

The appellant insisted that he did not know that Humphrey was going to rob the store or that he had a gun in his possession. Humphrey corroborated the appellant’s version of the facts. The victims had identified Humphrey as the person who held the gun on them and robbed them. On the other hand, there was no positive identification of appellant except that appellant was wearing a green flannel shirt when arrested and the individual who waited outside near the gas pumps was described as wearing a green shirt.

Defense counsel moved for a severance based upon the state’s intention to introduce statements Humphrey was alleged to have made to a third party which incriminated appellant as well as himself. At the close of a hearing on the severance motion the court granted severance and with that, the state announced that it would not offer the incriminating statements. Whether the order for severance was then vacated is not clear, as the state and the defendants entered into plea agreements and pre-trial proceedings were terminated.

On November 13, 1986, Humphrey and the appellant entered pleas of guilty. The appellant was sentenced to twenty-five years on the aggravated robbery charge, with five years suspended. He received six years, to run concurrently, on the felon in possession charge. A charge of theft was dismissed. Humphrey was given thirty-two and one-half years for the aggravated robbery and six years on the felon in possession conviction, to run concurrently with the aggravated robbery charge, and both to run concurrently with any Oklahoma sentence.

Appellant contends no factual basis for his guilty pleas was established as required by A.R.Cr.P. Rule 24.6. He cites only McDaniel v. State, 288 Ark. 629,708 S.W.2d 613 (1986), where we held that the court must ask the defendant directly if he is pleading guilty because he is guilty. But we have held several times since McDaniel that a factual basis is not so narrowly defined. See Snellgrove v. State, 292 Ark. 116, 728 S.W.2d 497 (1987); Furr v. State, 297 Ark. 232, 761 S.W.2d 1650 (1980). Moreover, the record of the guilty plea hearing establishes clearly that the trial court meticulously complied with Rule 24.6. He asked defense counsel, the deputy prosecutor, and both appellant and Humphrey in turn if a factual basis existed and obtained a positive response from each (quoting from page 95 of the record):

THE COURT: Mr. Gibson, is there a factual basis for your pleas in these cases?
MR. DEFENDANT GIBSON: Sir?
THE COURT: Is there a factual basis for your pleas of guilty in these cases?
MR. DEFENDANT GIBSON: I plead guilty, yes.
THE COURT: I asked you if there was a factual basis for it. That means do you feel that the jury could find you guilty if all this evidence was presented against you?
MR. DEFENDANT GIBSON: I believe it’s possible, yes.
THE COURT: Mr. Humphrey?
[MR. DEFENDANT HUMPHREY]: I believe it’s possible.
THE COURT: Well, do you want to withdraw your pleas of guilty at this time, Mr. Gibson?
MR. DEFENDANT GIBSON: No, sir.
THE COURT: Do you want to go forward with this, Mr. Gibson?
MR. DEFENDANT GIBSON: Yes.
THE COURT: Mr. Humphrey?
MR. DEFENDANT HUMPHREY: Yes.

Even if a factual basis had been wanting at the guilty plea hearing, it was adequately supplied by the testimony of Mr. Barnard at the Rule 37 hearing, which is sufficient. Furr v. State, supra. Appellant’s undisputed presence outside the gas station during the robbery, his running with Humphrey to the waiting car, and his giving a false name and other false information to the police at the time of and following his arrest are sufficient to establish a factual basis.

Turning to the contention that defense counsel was ineffective because there was a conflict of interest between Humphrey and appellant, in Burger v. Kemp, 483 U.S. 776 (1987) , it was held that one attorney may be appointed to represent two or more defendants without such representation constituting a per se violation of the Sixth Amendment right to effective assistance of counsel. In order to prevail on such a contention, the defendant must demonstrate that counsel actively represented conflicting interests which adversely affected counsel’s performance. Ingle v. State, 294 Ark. 353, 742 S.W.2d 939 (1988) . Appellant has made no such showing. The public defender in this case was an attorney with eleven years experience in the defense of criminal cases. He testified that there was no conflict between Humphrey’s defense and appellant’s defense, that Humphrey intended to testify that he had no prior intent to rob the store but when the clerks refused to sell him beer he drew his gun and robbed them on sudden impluse. Humphrey’s proposed testimony was that appellant did not participate in a robbery and did not even know Humphrey was armed. Appellant’s testimony was expected to coincide entirely with Humphrey’s. Thus, defense counsel testified that the two versions, rather than being in conflict, were entirely consistent. The trial court’s findings accepted that testimony as credible.

In Holloway v. Arkansas, 435 U.S. 475 (1978), the Supreme Court recognized that defense counsel “is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.”

Nor does the record otherwise support an inference of ineffective assistance of counsel. The public defender was neither indifferent nor ineffectual. The plea agreements are some indication of counsel’s effectiveness. The defendants were charged as habitual offenders with aggravated robbery, felon in possession of a firearm and theft. The state initially offered only a life sentence to Humphrey and 45 years with 5 years suspended to appellant but defense counsel negotiated decidedly more favorable terms: the aggravated robbery was reduced to robbery, the felon in possession sentence was merged with the robbery and the theft charge was dismissed. Humphrey agreed to plead guilty to aggravated robbery for a recommended sentence of 32.5 years with 5 years suspended. Appellant’s plea was based on a recommended sentence of 20 years with 5 suspended. Humphrey testified at the Rule 37 hearing that he had expected both he and Gibson would receive life sentences.

Finally, appellant maintains the state breached a promise to allow him to serve his time in Oklahoma where he was subject to a lengthy sentence. The state contends that there was no such agreement. The deputy prosecutor, testifying at the Rule 37 hearing, said that when the plea bargaining reached its final stages, with the trial imminent, he went to the jail to talk to Humphrey and the appellant at the request of, and accompanied by, defense counsel. He said the defendants tried to negotiate for shorter sentences based on family circumstances and the like:

... I can’t really remember exactly what the reason was, I told Mr. Settle [defense counsel] and I told them I was not coming off the time at all, and then they discussed well, what if we serve it in Oklahoma. I said I don’t care where you serve the time, but I want you to be — to understand that I have nothing to do with you serving anything, anywhere, other than in the State of Arkansas.
Q: Okay. Well, now you just heard the testimony of Mr. Gibson, he said you specifically told him you can serve your time in Oklahoma.
A: That’s a bald-faced lie.
Q: You never told him that?
A: I never told him anything like that. I told him that if there was some mechanism available in the State of Arkansas, where he could go to the Department of Correction and he could file a petition with the State of Oklahoma and Oklahoma would accept him back, that the State of Arkansas, as far as my office was concerned, would not resist any action on its part to have him transferred to serve his time.

Nor does the plea agreement provide support for this contention. At the plea hearing the only discussion concerning the Oklahoma sentences came when the judge asked defense counsel if the defendants understood that even though Arkansas was willing for the sentences to run concurrently with the Oklahoma sentences, that Oklahoma was not bound by such provision. Told the defendants did understand, the trial judge asked both defendants if they wished to withdraw their pleas of guilty or knew of any reason why the sentences should not be imposed. They answered no on both counts and each defendant was sentenced in strict accordance with the plea agreement. The appellant has, we believe, wholly failed to meet the heavy burden of proving ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984).

AFFIRMED.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The majority is written clearly contrary to the facts of this case and our prior decisions. I first discuss the issue of whether the appellant received ineffective assistance of counsel. Although the appointment of one attorney to represent two or more defendants is not per se violative of the constitutional guarantees of the Sixth Amendment, it does create a possible conflict of interest that should be closely watched. Burger v. Kemp, 483 U.S. 776 (1987); Holloway v. Arkansas, 435 U.S. 475 (1978); and Ingle v. State, 294 Ark. 353, 742 S.W.2d 939 (1988). .

In the present case, the appellant’s best defense depended upon Humphrey either pleading guilty or being convicted. If Humphrey had been tried first and convicted, he would have been available to testify at the appellant’s trial and could not have claimed the right to remain silent under the Fifth Amendment. He stated that he would not have testified for the appellant at a joint trial. However, had Humphrey been tried first, he would have testified that the robbery had been committed on the spur of the moment and that it was all his idea. Humphrey stated that he conceived the idea after one of the clerks refused to sell him beer. The witnesses identified him as the gun-wielding robber. There was little likelihood that Humphrey could have escaped conviction under any circumstances. His best strategy would have been to hitch his hopes to the appellant and seek a bargain providing for something less than a life sentence.

All of the evidence against the appellant was circumstantial. Neither the victims nor any witnesses were able to identify the appellant. The circumstantial evidence available was sufficient to uphold a conviction of the appellant had it been presented at trial. It is the appellant’s contention that his counsel was forced into a situation where he had to plead the appellant guilty and take a stiffer sentence in order to plead Humphrey guilty and obtain something less than he would have received from a jury.

At the Rule 37 hearing, the public defender who had represented the appellant at the trial responded in the following manner to questions posed by the appellant’s present attorney:

Q. Would it be better for Mr. Gibson to try Mr. Humphrey first?

A. On, yeah.

Q. And, assuming Mr. Humphrey is convicted, then he would really have no reason not to testify for Mr. Gibson?

A. That would be correct.

Q. Did you try and do anything to accomplish that?

A. No, I don’t believe I did. I — I don’t recall anything. ...

Q. You made no motion that Mr. Humphrey be tried first?

A. No, I did not (T. 162)

Although the prosecution had strong inculpatory statements from Humphrey, they agreed not to introduce them if both the appellant and Humphrey either pled guilty or were tried together. This, of course, was a lucky break for the codefendant but bad news for the appellant. The following questions and answers relate to these statements and the strategy of the state on the package deal:

Q. And the State agreed not to use those statements —
A. And —
Q. — in order to try Mr. Gibson and Mr. Humphrey together?
A. Exactly.
Q. And the reason for that is because they were worried about not convicting Mr. Gibson?
A. Uh-huh, but they chose to try Mr. Gibson first.
Q. Uh-huh. And the reason for that is that they were trying to cut a deal with Mr. Humphrey to enter a plea and testify against Mr. Gibson?
A. They always knew — they would have to always know that they — Mr. Humphrey would not be the problem to trying this case, as far as making a case against either one of them. Mr. Humphrey, they could always make a case against. There would be no reason to hold Mr. Gibson —
Q. The State had Humphrey and they wanted Gibson?
A. Uh-huh, that’s correct.

The motives of the state become even clearer in the following testimony of the public defender: “In all the years that I — all the — I don’t know, hundreds of cases, that I tried and represented defendants, I never heard of the State being anxious — so anxious to nail the lookout man more than the man, who actually did it, especially, when the man, who actually did it, had a worse record than the alleged lookout man.”

It is obvious that the appellant would have had a better chance had Humphrey been in a position to testify on his behalf. Humphrey understandably did not want to testify while his case was still pending. He intended to invoke his right to remain silent. From the appellant’s standpoint, therefore, it would have been essential to have Humphrey tried first. The defense attorney afforded some insight into his tactics when he was questioned about Humphrey’s unwillingness to take the stand at a joint trial. Referring to Humphrey’s decision, he said: “I think in this case, if we had gone in like a sack of cement, I think the jury would have given that sack of cement life. We couldn’t do that. Mr. Humphrey could not afford to do that. I knew that Mr. Humphrey was in big trouble. Mr. Humphrey knew he was in big trouble.”

The defense counsel went on to claim that if Humphrey had testified on the appellant’s behalf, as well as his own, his testimony would have been hand-in-glove with the appellant’s defense. It would have indicated that Humphrey was the only one of the two men who knew a robbery was occurring. The defense counsel admitted that it would definitely have been in the appellant’s best interest for Humphrey to have been tried first. He never made a request, however, because he no doubt felt loyalty to both clients and was doing his utmost to serve both at the same time.

The case of Boyett v. State, 290 Ark. 43, 716 S.W.2d 749 (1986), concerned representation by single counsel of persons jointly accused of a crime. In reversing the trial court’s refusal to grant a hearing on the basis of ineffective assistance of counsel, we stated: “A separate attorney for Boyett could probably have negotiated a lighter punishment than that to be inflicted upon Rice. But Boyett’s advantages melted away when there was only one defense lawyer for both defendants, for that lawyer obviously could not in good conscience play one of his clients against the other in pretrial negotiations. We are not saying that he is entitled to relief; we are saying that he is entitled to a hearing.”

The defense counsel in the present case was duty-bound to represent each of his clients in the best possible manner and to the best of his ability. That proved an impossibility when it became obvious that the state’s case against the appellant was not nearly as strong as that against Humphrey. A conflict of interests between the codefendants surfaced. The state offered only a package deal, which included a plea of guilty by the appellant. No matter how hard the attorney tried, he could not possibly fully represent the interests of both Humphrey and the appellant under the circumstances of this case. The deal to get Humphrey out for less than life may have well cost the appellant a few years.

As the United States Supreme Court stated in Holloway v. Arkansas: “[J]oint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing. . . . [T]he evil — it bears repeating — is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial negotiations and in the sentencing process.” 435 U.S. at 489-490.

Although neither the appellant nor Humphrey had much chance of being found innocent, the odds were more strongly against Humphrey than the appellant. Even the wisdom of Solomon himself probably would have failed any attorney in his efforts to effectively represent both defendants in this case. The defendant was denied effective assistance of counsel under these circumstances.

There was not a factual basis for the appellant’s guilty plea. He never answered the question about a factual basis. He did however admit that a jury might convict him at trial. That is a distinct possibility anytime a person is charged with a crime.


author: David Newbern, Justice. Tom Glaze, Justice,

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. X DOTSON and Fern Dotson, and Dotson Land and Cattle Company
    89-315
    781 S.W.2d 459
    Supreme Court of Arkansas
    Opinion delivered December 18, 1989

      Robert L. Wilson, Charles Johnson, and Ted Goodloe, for appellant.

      Billy J. Allred, for appellee.
   David Newbern, Justice.

This is a land condemnation case which originated in the Madison County Court and was appealed to the Madison County Circuit Court where damages were awarded to X and Fern Dotson and the Dotson Land and Cattle Company (Dotsons), the appellees, against the appellant, Arkansas State Highway Commission. The commission contends it was not a proper party to the action and thus it was error for the court to have entered a judgment against it for damages resulting from the taking. We must reverse and remand the case because we agree the commission was not, and could not have been, a proper party to a county court condemnation. We need not address the commission’s second point, that the evidence presented on the value of the land taken was insufficient, because we assume the issue will not arise if there are further proceedings.

The Dotsons on cross-appeal contend that, should we find the county rather than the commission was the party initiating the proceedings in its own court, our statute permitting it is unconstitutional. This argument was raised by the Dotsons and taken under advisement by the trial judge, however, neither the commission nor the county made any response to the argument. The trial court did not rule on the issue. Where issues have not been fully adjudicated below we will not consider them on appeal. Arkansas Dep’t of Human Serv. v. M.D.M. Corp., 295 Ark. 549, 750 S.W.2d 57 (1988).

The record begins with an order, first dated August 25,1986, and revised as of October 29,1986, of the Madison County Court which is styled “IN THE MATTER OF THE PETITION OF THE ARKANSAS STATE HIGHWAY COMMISSION FOR CHANGES TO STATE HIGHWAY NO. 295 and 295S.” The order granted a perpetual easement over certain described lands, and stated “the lands . . . described [are] hereby condemned and for the use and benefit of the Arkansas State Highway Commission.” The lands described included 3.03 acres belonging to the Dotsons. The order concluded with a provision that any aggrieved landowner should present his claim to the court within one year from the date of service of the order.

The record next contains a Madison County Court order of September 9,1987, styled the same as the order mentioned above, reciting that the Dotsons had filed a petition which was denied because the betterments resulting to their property from the condemnation offset the damages they claimed. As its basis of jurisdiction, the county court order recited statutes now codified as Ark. Code Ann. §§ 14-298-120 and 27-67-212 (1987).

The Dotsons appealed to the circuit court. The commission moved to dismiss on the grounds that it had not been served in the action, that it was a suit against the state, and that the county, not the commission, was liable for the alleged damages. The motion was denied. The case was tried to a jury which awarded the Dotsons $3500 against the commission.

The commission argues that it may call upon the county to condemn land for construction of a state highway pursuant to § 27-67-212, and that this procedure may result in a jury trial in circuit court in accordance with § 14-298-120. The commission notes that it may force the county to comply or make the county pay 50% of the costs of condemnation under Ark. Code Ann. § 27-67-320 (1987).

Section 14-298-120(a) gives county courts the power to open new roads, make changes in old roads, and classify roads. Subsection (a)(3) states “An appropriate order of the county court shall be made and entered therefor.” Subsection (j) provides for appeal to the circuit court if the landowner is not satisfied with the amount awarded by the county court.

Section 27-67-212(a) provides that the commission may “call upon the county court to change or widen, in the manner provided by § 14-298-121, any state highway in the county where the state highway engineer deems it necessary. . . .’’The reference should be to § 14-298-120 which, as we explained in Greig v. Crawford County, 256 Ark. 202, 506 S.W.2d 523 (1974), was passed to correct the notice requirement in § 14-298-121.

While § 14-298-120 gives the county court the power to condemn land on its own motion and upon petition of interested landowners, it does not permit a petition of the commission to be acted on by the county court. The record contains no petition by the commission to the county court. The recitation by the county court order that there was such a petition is apparently a reference to action by the commission to “call upon” the county to act as permitted in § 27-67-212(a). In such instances, the county is the condemning authority, and the commission is not a party. Arkansas State Highway Comm. v. Croom, 225 Ark. 312, 280 S.W.2d 887 (1955); Arkansas State Highway Comm. v. Palmer, 222 Ark. 603, 261 S.W.2d 772 (1953).

There is some indication in the testimony given at the circuit court hearing that the commission drafted the county court order. The Dotsons contend that the commission thus made itself a party to the case by styling it in its name. While it is true that the state will be treated as other suitors when it has brought suit, Arkansas State Highway Comm. v. Roberts, 248 Ark. 1005, 455 S.W.2d 125 (1970), we do not conclude that the commission was the petitioner in this case just because the commission erred in styling the county court order. The very authority cited in the county court order would not permit the commission to be the petitioner.

Conclusion

While it is unfortunate that the Dotsons were apparently misled by the improperly styled county court order into thinking that the commission was a proper party to their appeal, the commission’s motion to be dismissed as a party should have been granted by the circuit court. The judgment against the commission is improper and is therefore reversed and dismissed. The case is remanded to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded.

Holt, C.J., and Purtle and Glaze, JJ., dissenting.

Tom Glaze, Justice,

dissenting. The result reached by the majority in this case is unfair and in my view, contrary to law. The State Highway Commission initiated this litigation by filing its petition in Madison County Court on August 25, 1986, to make certain changes in State Highways 295 and 295 S. The county court notified any landowners affected by the Commission’s action and order of condemnation to present their claims. Appellees petitioned for damages and by order dated September 9, 1989, the county court denied them any relief. Appellees appealed to the Madison County Circuit Court and the Commission moved to dismiss the appeal, claiming it was not a party in interest and the circuit court lacked jurisdiction to award damages against the Commission. The circuit court denied the Commission’s motion, set the matter for jury trial and the jury subsequently awarded appellees damages in the sum of $3,500.

In this appeal, the Commission claims it is not a proper party and cannot be named a party defendant. In making its argument, the Commission cites Ark. Code Ann. §§ 14-298-120 and 27-67-212 (1987), arguing Madison County was the proper party in this matter. In particular, the Commission cites § 27-67-212, which provides the Commission, upon certain conditions, may call upon the county court to change or widen any state highway in the county. In Lee County, Ark. v. Holden, 82 F. Supp. 353 (E.D. Ark. 1949), the federal district court considered this same language and concluded that when the Commission files such a condemnation lawsuit, its petition does not amount to a mere request to the county to commence an action in the county’s own right. The district court concluded that the Commission was the real party in interest.

In Ark. State Highway Comm’n v. Roberts, 248 Ark. 1005, 455 S.W.2d 125 (1970), we emphasized the rule that when the state becomes a suitor in its courts, it is subject to like restrictions as a private suitor, must be treated as other litigants and must submit to and abide by, the result. Unfortunately, the majority court is treating the Commission with deference not deserved in this matter. The entire matter would have never arisen if the Commission had not initiated these condemnation proceedings and the awards and benefits that ensue from these proceedings are for the Commission. The Commission knew what it was doing when proceeding in this matter, but if for some reason it erred when bringing this case in its name, this court should not penalize the appellees for the Commission’s error. The law certainly does not require this court to reach such an inequitable result.

Holt, C.J., and Purtle, J., join this dissent.

       The court pointed out the criterion in determining the question of real party in interest and most of those are evident in the present case. See Lee County, Ark., 82 F. Supp. at 356.


author: David Newbern, Justice.

text:
    Alfred James MILLER, Jr. v. STATE of Arkansas
    CR 89-142
    781 S.W.2d 475
    Supreme Court of Arkansas
    Opinion delivered December 18, 1989

      Gregory Ferguson, for appellant.

      Steve Clark, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This is an appeal from denial of a petition for a writ of habeas corpus. Alfred James Miller, Jr., was accused of robbing a grocery store while armed with a butcher knife. He pleaded guilty to aggravated robbery and was convicted in 1978. Since then, he has contended in petitions filed pursuant to Ark. R. Crim. P. 37 that no formal judgment was entered in his case. He argues he was entitled to post-conviction relief because without a dated judgment he was unable to calculate the effect of his sentence on a sentence he was serving when convicted and could not know when his time for seeking Rule 37 relief would expire. His two Rule 37 petitions were denied, and he has made the same allegations in his petition for a writ of habeas corpus.

The writ of habeas corpus may be granted upon a showing of probable cause that an incarcerated person is detained without lawful authority or is being detained without bail to which he is entitled. Ark. Code Ann. § 16-112-103(a) (1987). The writ may not be granted unless it is shown that the commitment is unlawful on its face or that the court authorizing the commitment lacked jurisdiction. Johnson v. State, 298 Ark. 479, 769 S.W.2d 3 (1989); George v. State, 285 Ark. 84, 685 S.W.2d 141 (1985).

The amended order of commitment in this case purports to be a true transcript of the judgment and sentence of the court. It refers to proceedings of September 8,1978, at which Mr. Miller pleaded guilty to aggravated robbery and was sentenced to 50 years imprisonment with 20 years suspended, noting that Mr. Miller admitted he had previously been convicted of four felonies. Mr. Miller does not even allege that the order is unlawful on its face or that the court lacked jurisdiction. The trial court correctly observed that the relief sought was more in the nature of the kind which can be granted pursuant to Rule 37. He properly refused to consider Rule 37 relief because it had already been sought and denied.

Mr. Miller has also argued that certain testimony was improperly received in the hearing on the writ. We need not address that point because it would not affect the disposition of the case even if correct.

Affirmed.


author: David Newbern, Justice. John I. Purtle, Justice,

text:
    Gula LYTLE v. Jimmie E. LYTLE
    89-292
    781 S.W.2d 476
    Supreme Court of Arkansas
    Opinion delivered December 18, 1989

      James A. McLarty, for appellant.

      John Norman Harkey, for appellee.
   David Newbern, Justice.

Mrs. Gula Lytle appeals the chancellor’s order reducing the alimony she is to receive from Dr. Jimmie E. Lytle from $1500 to $250 per month. We cannot say that the factual findings of the chancellor were, as Mrs. Lytle contends, clearly erroneous, nor do we find we should reverse the chancellor’s conclusion which we review de novo.

Upon a prior appeal we affirmed a decree divorcing the parties although we remanded the case because of an error in property division. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979). The alimony award was not contested in the earlier appeal. In 1988, Dr. Lytle petitioned the court to reduce the alimony because of changed conditions. In his order the chancellor recited the following:

(a) At the time of the divorce, Ms. Lytle received approximately $135,000.00 in liquid assets plus other property, and thus, over the years, has had available to her the investment income from that property, thus alleviating her need for alimony.
(b) Dr. Lytle’s income has decreased in recent years due to his cutting back in his medical practice in preparation for semi-retirement or full retirement.
(c) Dr. Lytle has re-married.
(d) Most importantly, the proof at the time of the divorce from Ms. Lytle was that she was not able to work and earn any money for herself because of her medical problems. However, since the divorce she has been employed earning a substantial income for herself.
(e) Due to the fact she was working plus receiving investment income plus receiving full alimony award (which was fixed on the assumption that she would not be able to work), Ms. Lytle should have been able to accumulate substantial savings over and above her needs for living expenses. The facts indicate that she did, in fact, accumulate substantial savings and passed such savings along to her children by way of periodic and substantial gifts to them.

Mrs. Lytle’s brief states that the standard of review in challenging the chancellor’s finding of changed circumstances is that we may not reverse unless we determine the findings to have been clearly erroneous, citing Nix v. Nix, 17 Ark. App. 219, 706 S.W.2d 403 (1986). The Nix case involved a child custody order. The court of appeals wrote that the findings of the chancellor resulting in a change of a custody order were to be affirmed unless shown to be clearly erroneous or clearly against the preponderance of the evidence, citing Ark. R. Civ. P. 52(a). The decision of the court of appeals, however, was apparently that the conclusion of the chancellor, which may be reviewed de novo, based on the facts he had found, was proper. We have held that, even in a de novo review we will not set aside the chancellor’s decision unless it is “clearly wrong.” Pinkston v. Pinkston, 278 Ark. 233, 644 S.W.2d 930 (1983).

Mrs. Lytle challenges some of the factual findings made by the chancellor as well as some of his conclusions based on those findings.

Tax records showed that Dr. Lytle’s adjusted gross income between 1981 and 1987 peaked at $117,298 in 1983. It was $91,688 in 1984, $91,628 in 1985, $87,650 in 1986, and $77,963 in 1987. He is remarried, and his wife works in his clinic as a nurse without pay. He has been involved in property transactions with other physicians, suffering some reverses, and has incurred some debt. He testified that he was having to slow down his medical practice because of health problems and age and has, until recently, been paying the salary of an associate. He now has an arrangement with the associate whereby he will receive half the associate’s medical practice income in exchange for supplying space, equipment, and other support for his practice. Dr. Lytle conceded he was beginning to earn some income from the arrangement.

Mrs. Lytle testified she recalled her testimony at the divorce trial in which she told the chancellor of a back problem and back surgery she had undergone. There was thus reason to conclude that her physical condition would affect her ability to work if not preclude her from working. At the hearing on the modification petition she testified the problem had not reoccurred and she has been steadily employed, although in very low-paying jobs, since the divorce. The evidence showed that she had given large sums of money and other gifts to the adult Lytle children, one of whom is now a surgeon, and another of whom is in college at age 29. The money for these gifts apparently came from the property Mrs. Lytle received at the time of the divorce. She retains a substantial stock portfolio and a retirement account. Mrs. Lytle describes these facts as creating the “crux of the case.” She argues that the alimony granted to her was not conditioned upon her inability to work and that she should not be penalized for her generosity toward her children.

While it is correct to say that the alimony was not conditioned on Mrs. Lytle being able to work, her disability at the time of the divorce was a fact in evidence, and that circumstance has undisputedly changed. It cannot be denied that had she not given away assets which could have produced income to her, her standard of living would be higher.

The evidence with respect to Dr. Lytle’s financial condition and his prospective earning capacity is conflicting. Mrs. Lytle notes that while claiming to be slowing down, Dr. Lytle has entered into an arrangement with other doctors to open an afterhours clinic. She does not dispute his testimony that he has stopped accepting new obstetrics patients and that he has health problems which are slowing him down.

We cannot say that any of the fact findings in the chancellor’s order are clearly erroneous. Nor do we, in our de novo review, necessarily disagree with the conclusion he reached to lower the alimony payments. The testimony about Dr. Lytle’s finances was somewhat complicated as was that with respect to Mrs. Lytle’s assets, both those expended and those which remain. As we have held many times, we must take into consideration the superior position from which the chancellor evaluates the credibility of the witnesses. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Sowards v. Sowards, 243 Ark. 821, 422 S.W.2d 693 (1968). We cannot say the result reached was clearly wrong.

Affirmed.

Purtle, J., dissents.

Hays, J., not participating.

John I. Purtle, Justice,

dissenting. I recognize the superior position of the chancellor to evaluate the credibility of witnesses. However, his superior position does not prevent this court from independently reviewing the law and equity of the case.

The husband has admittedly been paying taxes on more than $75,000 earned income per year. This, of course, is after deductions for expenses, depreciation, and other exemptions authorized by law. Additionally, he is now receiving one-half of the income of a young doctor who has come into practice with him. He paid this same doctor $60,000 in salary for the calendar year 1987. Not only will the appellee save this $60,000 in the future, he will also gain 50 percent of the income of his associate.

On the other hand, the appellant’s income will be less than $10,000, including the reduced monthly alimony payments from the appellee. The reduced alimony payment probably will cover nothing more than medical insurance for the appellant. New people can manage on an income of less than $10,000. Although the appellant may not have spent her money wisely, she is nevertheless in need of help at this time in her life. Certainly, a reduction may be in order, but the alimony payments should not be reduced so drastically. A court of equity has also been, historically, a court of conscience. Certainly, it seems to me, equity and justice in the present case demand that the appellee pay more than $250 a month to the appellant as alimony.


author: Tom Glaze, Justice.

text:
    Michael TUNE v. Jennifer CATE
    89-194
    781 S.W.2d 482
    Supreme Court of Arkansas
    Opinion delivered December 18, 1989

      James M. McCord, for appellant.

      George E. Butler, Jr., for appellee.
   Tom Glaze, Justice.

This case involves a paternity proceeding which was originally heard and decided by a paternity referee and the Washington County Judge. On November 2,1988, they entered an order finding appellant the father of Mallory Cate, born on January 24,1987, and among other things, appellant was ordered to pay $25.00 per week. On December 2,1988, appellant filed what he labeled a “prayer for an appeal” to the Washington County Circuit Court, and the county judge by court order granted the appeal on the same date. On January 16, 1989, appellee, Mallory’s mother, moved to dismiss appellant’s appeal, stating the appellant had failed to file an appeal bond as required by law. Appellant responded, asserting no bond was necessary. By letter opinion, the Washington County circuit judge held that an appeal bond was required, and subsequently entered an order dismissing appellant’s appeal to circuit court upon finding the appellant had failed to post such a bond.

The sole issue here is whether appellant was required to file an appeal bond in order to perfect an appeal to circuit court from the referee’s and county judge’s November 2, 1987 order. Two statutes, Ark. Code Ann. §§ 9-10-106 and -10-117 (1987), bear on this question and set forth the appeal procedure in paternity actions to the circuit court. Section 9-10-117 was enacted in 1875 and subsection (b) of that statute provides that no appeal shall be granted until an appeal bond, with affidavit, is filed. That provision has been interpreted to mean that there could be no valid appeal without the filing of a bond. See Epperson v. Sharp, 222 Ark. 456, 261 S.W.2d 267 (1953).

Appellant contends that § 9-10-106, which was enacted in 1977 and amended in 1983, authorized the county court to appoint a paternity referee to hear paternity proceedings and, in so doing, provided for an appeal procedure that required no bond. In making his argument, appellant cites § 9-10-106(d)(1) and (d)(4) which provide as follows:

(d)(1) Appeals from any decision of the paternity referee may be taken as a matter of right to the circuit court in the county in which the case was decided by causing the record to be filed with the clerk of the circuit court within thirty (30) days after the decision of the paternity referee is rendered.
* * * *
(d)(4) Every person shall have the right to post an appeal bond in such amount and under such conditions as the paternity referee shall, in his discretion, determine.

Appellant does not contend that § 9-10-106 supersedes § 9-10-117, but instead argues that when a county judge decides the paternity issue, the party appealing the decision must post a bond; however, if a referee decides the issue, no bond is necessary. We find no logic to such reasoning.

First, appellant’s argument ignores the language in § 9-10-106(c) which provides the decisions of the paternity referee shall be binding upon the county judge and such order or judgment shall have the same effect as a decision by the county judge. Clearly, by such statutory language, the General Assembly in no way intended to provide a preferential or different treatment to appeals from decisions made by referees as opposed to those made . by county judges. As noted above, § 9-10-106(d)(4) merely provides every person shall have the right to post an appeal bond and only the amount and conditions of such a bond are left to-the discretion of the referee. We find nothing in the provisions ,of § 9-10-106 which alleviates the posting of an appeal bond in paternity proceedings.

Second, it is well established that the General Assembly is deemed cognizant of this court’s decisions respecting statutory interpretation whenever it enacts legislation, Smith v. Ridgeview Baptist Church, 257 Ark. 139, 514 S.W.2d 717 (1974), and that being so, the General Assembly was fully aware that we had already construed § 9-10-117 as requiring a bond when perfecting an appeal from a paternity action. Epperson, 222 Ark. 456, 261 S.W.2d 267. Nonetheless, in enacting § 9-10-106, the General Assembly gave no indication that it intended to dispense with bonds in appeals from paternity decisions, but instead merely reiterated that which was already provided in § 9-10-117, viz., that every person shall have the right to post an appeal bond. ,.

Sections 9-10-106 and -10-117 involve the same subject matter and when construing them together, as we must, the intent of the General Assembly is evident that an appeal bond is required under both provisions regardless of whether the paternity action is decided by a referee or county judge.

In the present case, both the paternity referee and county judge entered the order determining appellant was Mallory’s father and fixing support payments at $25.00 per week. Interestingly enough, the county judge, not the referee, was the one who granted an appeal. In any event, no mention of an appeal bond was made by either the referee or county judge and for that reason, the circuit judge dismissed appellant’s appeal. The judge was correct, and we affirm.

       The “prayer” was accompanied by an affidavit stating that the appeal was not taken for the purposes of vexation and delay.

       In the transcript, we do find the referee and county judge’s order finding paternity and fixing support did refer to a security bond for the payment of child support ordered by the county court.