author: R AY THORNTON, Justice. A NNABELLE CLINTON IMBER, Justice,

text:
    STATE of Arkansas v. Timothy Wayne HARDIN
    CR 01-371
    60 S.W.3d 397
    Supreme Court of Arkansas
    Opinion delivered November 29, 2001
    [Petition for rehearing denied January 10, 2002.]

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellant.

      James R. Wallace & Associates, by; H. C. Jay Martin, for appellee.

       Arnold, C.J., and Glaze and Imber, J.J., would grant.

   R AY THORNTON, Justice.

On November 16, 1999, a jury convicted Mr. Hardin of one count of rape, one count of residential burglary, and one count of misdemeanor theft of property. Mr. Hardin’s conviction was affirmed on direct appeal. Hardin v. State, CACR 99-604, 2000 WL 139258 (Ark. App. Feb. 2, 2000). Thereafter, Mr. Hardin filed a petition for postconviction relief pursuant to Rule 37, alleging that his attorney, Jeff Weber, had rendered ineffective assistance of counsel. In his petition, Mr. Hardin alleged that Mr. Weber was ineffective as counsel due to his (1) failure to investigate defenses, (2) failure to investigate defense witnesses, (3) failure to prepare Mr. Hardin to testify, and (4) failure to ask questions on cross-examination of the victim that Mr. Hardin requested him to ask.

The Rule 37 hearing began on November 3, 2000, and on January 11, 2001, the trial court entered an order granting Mr. Hardin a new trial. It is from this order that the State now brings this appeal. While the underlying case is criminal in nature, which suggests that Ark. R. App. P. — Crim. 3 should apply, we have recognized that Rule 37 proceedings are “civil in nature” and have recently decided appeals by the State from grants of postconviction relief. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999) (citing State v. Clemmons, 334 Ark. 440, 976 S.W.2d 923 (1998); State v. Herred, 332 Ark. 241, 964 S.W.2d 391 (1998); State v. Slocum, 332 Ark. 207, 964 S.W.2d 388 (1998)). Having determined that this appeal is properly before us, we turn to the merits of the case.

I Standard of Review

On appeal from a trial court’s ruhng on Ride 37 relief, we will not reverse the trial court’s decision granting or denying post-conviction relief unless it is clearly erroneous. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001) (citing Dillard, supra). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Davis, supra (citing Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997)).

II. Ineffective Assistance of Counsel

We outlined the principles of law regarding postconviction challenges in Davis, supra,.where we stated:

For many years, Arkansas has allowed collateral attacks upon a final conviction and appeal by means of a postconviction challenge to determine whether a sentence was void because it violated fundamental rights guaranteed by the Constitutions or laws of Arkansas or the United States. The present rule for such a challenge is Ark. R. Crim P. 37, which provides the following grounds for a petition:
(a) that the sentence was imposed in violation of the Constitution or laws of the United States or this state; or
(b) that the court imposing the sentence was without jurisdiction to do so; or
(c) that the sentence was in excess of the maximum sentence authorized by law; or
(d) that the sentence is otherwise subject to collateral attack. . . .
Ark. R. Crim. P. 37.1. The most common ground for postconviction relief is the assertion that the petitioner was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Strickland v. Washington, 466 U.S. 668 (1984).

Davis, supra.

We also outlined the Strickland standard for assessing the effectiveness of trial counsel in Davis, supra:

[T]he petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. A court must indulge in a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.

Id. (quoting Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999)). In making a determination on a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000).

Upon examination of the trial court’s order, we conclude that there is error in the order that requires us to remand the case. In its order granting Mr. Hardin a new trial, the trial court reasoned:

In Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980) at 428, the Arkansas Supreme Court stated: “None of the specific allegations considered separately, if true, would justify vacation of the sentence . . . Still petitioner’s allegations, considered collectively, warrant our granting permission to petitioner to apply to the trial court for relief under Rule 37 on the basis of the specific allegations of ineffective assistance of counsel enumerated above. . . .”
This court is of the opinion that the seriousness of the Class Y felony charge required more investigation and research than what was done by counsel, thus, rendering his assistance ineffective pursuant to Rule 37.

The State argues that the trial court’s reliance on Neal, supra, is misplaced. We agree.

While the express language that the trial court recited in Neal, supra, seems to support the trial court’s finding that cumulative error can be used to support a finding of ineffective assistance of counsel, that conclusion is mistaken. First, we note that Neal, supra, was decided when the former Rule 37 was in effect, and the former Rule 37 required petitioners who had appealed their convictions to seek our permission to proceed in circuit court. See Ark. R. Crim. P. 37.2(a) (1990) (modified 1991) (“If the conviction in the original case was appealed to the Supreme Court or Court of Appeals, then no proceedings under this rule shall be entertained by the circuit court without prior permission of the Supreme Court.”); but see Ark. R. Crim P. 37.2(a) (“If the conviction in the original case was appealed to the Supreme Court or Court of Appeals, then no proceedings under this rule shall be entertained by the circuit court while the appeal is pending.”). Therefore, the pronouncement in Neal, supra, was merely a determination that the petitioner was entitled to proceed with a Rule 37 hearing, not a resolution of the ultimate issue of whether trial counsel was ineffective. Second, we note that while Neal, supra, seems to suggest a cumulative-error analysis in ineffective assistance of counsel challenges, we have squarely rejected the cumulative-error analysis on numerous occasions. E.g., Noel, supra (holding that we do not recognize cumulative error in allegations of ineffective assistance of counsel). We conclude that the trial court erred in resting its Strickland analysis upon a cumulation of allegations of ineffective assistance of counsel. The trial court’s rebanee on Neal, supra, is misplaced. Because the trial court erroneously relied on Neal, supra, what we do not know is whether the trial court would have found that one or more of the allegations of ineffective assistance of counsel, standing alone, showed that Mr. Weber made errors so serious that he was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment, and that the deficient performance prejudiced the defense sufficiently to undermine confidence in the outcome of the trial. See Davis, supra.

The State contends that the trial court erred in granting Mr. Hardin a new trial because it did not find that counsel’s ineffective assistance was prejudicial to him. The State argues that the trial court’s finding that counsel rendered ineffective assistance under Rule 37 was not adequate to show prejudice and that the failure to interview witnesses and other alleged deficiencies should be excused as trial strategy. From the record before us, and in light of the United States Supreme Court’s decision in Williams v. Taylor, 529 U.S. 362 (2000), as well as the trial court’s mistaken reliance upon cumulative error, we cannot say that the trial court was clearly erroneous on this point. We conclude that the case must be remanded to analyze the matter without giving consideration to cumulative error. Only when such an analysis is made will we be able to determine whether both prongs of Strickland have been met. Therefore, we remand the case for the trial court to make that determination.

Reversed and remanded.

Arnold, C.J., and Glaze and Imber, JJ., dissent.

A NNABELLE CLINTON IMBER, Justice,

dissenting. The majority ignores that under Strickland v. Washington, regardless of whether or not counsel’s performance was deficient, there must still be a showing of prejudice: “[A]ctual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.” 466 U.S. 668, 693 (1984). The United States Supreme Court made it clear in Strickland that the existence of prejudice is paramount to a finding of ineffective assistance of counsel:

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.

Id. at 691-92. (Citation omitted.) It is not enough for the petitioner to show that the errors had some conceivable effect on the outcome of the proceeding; rather the petitioner must show there is a reasonable probability that, absent counsel’s errors, the factfinder would have had a reasonable doubt as to guilt. Id. at 693-95.

Without determining whether any purported deficiencies in Mr. Weber’s performance prejudiced Mr. Hardin, the majority remands this case and instructs the trial court “to analyze the matter without giving consideration to cumulative error.” Remanding the case, however, is completely unnecessary. It is Mr. Hardin’s failure to make the required showing of sufficient prejudice that defeats his ineffective-assistance-of-counsel claim, rather than the trial court’s misplaced reliance on Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). This court has recently reversed the trial court’s grant of a new trial in several cases after reviewing the record and determining that there was no showing of prejudice.

In State v. Herred, the trial court found that Herred was denied effective assistance of counsel and granted him a new trial. 332 Ark. 241, 964 S.W.2d 391 (1998). We held that the trial court clearly erred in granting postconviction relief “because it failed to find that any of counsel’s purported deficiencies prejudiced Herred.” Id. at 253, 964 S.W.2d at 398. We pointed out the trial court’s failure to make a finding that there existed a reasonable probability of a different outcome. Id. Furthermore, we concluded that the record suggested otherwise. Id. Similarly, in State v. Clemmons, the circuit court found that the defendant was denied effective assistance of counsel and granted him a new trial. 334 Ark. 440, 976 S.W.2d 923 (1998). In reversing the circuit court’s grant of a new trial, we noted that the circuit court failed to state how a “purported deficiency prejudiced Clemmons,” and we held that “the circuit court was clearly erroneous in granting Clemmons a new trial because no showing was made that. . . Clemmons was prejudiced by counsel’s deficient representation.” Id. at 444, 976 S.W.2d at 925. In State v. Slocum, the trial court granted Slocum a new trial based on alleged ineffective assistance of counsel. 332 Ark. 207, 964 S.W.2d 388 (1998). Slocum asserted that his counsel was ineffective for failing to request a specific jury instruction. We held that the trial court clearly erred in granting the new trial, adding that “it cannot be said that the result of the trial would have been different had the instruction been requested.” Id. at 213, 964 S.W.2d at 391.

Likewise, in this case, the trial court’s order sets forth no facts showing prejudice and no such facts are apparent from the record. In making a determination on a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). Once again, the Supreme Court has fully explained what a court should keep in mind as it makes the prejudice determination:

[A] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.

Strickland, supra, at 695-96. Based upon the evidence submitted at the postconviction hearing in this case, we know what the omitted testimony would have been. Considering the totality of the evidence, it is inconceivable that the testimony of the witnesses who were not called by defense counsel to testify at trial, or Mr. Hardin’s own testimony, would have produced a reasonable doubt in the minds of the jury as to Mr. Hardin’s guilt.

In addressing whether the trial court’s finding that counsel rendered ineffective assistance was adequate to show prejudice, the majority makes the following holding: “From the record before us, and in light of the United States Supreme Court’s decision in Williams v. Taylor, 529 U.S. 362 (2000), as well as the trial court’s mistaken reliance upon cumulative error, we cannot say that the trial court was clearly erroneous on this point.” I disagree. Not only is the trial court’s mistaken reliance upon cumulative error irrelevant, but the majority’s application of Williams v. Taylor is misplaced, and the record before us does not show that Mr. Hardin was prejudiced by counsel’s purported deficient performance. As demonstrated by Herred, Clemmons, and Slocum, supra, this court can reverse the grant of a new trial where it is clear from the record that no showing of prejudice has been made. Thus, the trial court’s mistaken reliance upon cumulative error is of no consequence.

In addition to being distracted by the irrelevant cumulative error issue, the majority mistakenly relies upon Williams v. Taylor, 529 U.S. 362 (2000). The Supreme Court held in Williams that an attorney’s failure to investigate and present substantial mitigating evidence on behalf of a defendant warranted a finding of ineffective assistance of counsel. Id. Clearly, the case before us is distinguishable from Williams. It cannot be said there is substantial mitigating evidence in favor of Mr. Hardin. If there had been a “voluminous amount” of favorable evidence, as there was in Williams, Mr. Hardin might have been able to show that presentation of the omitted evidence would have changed the outcome of his trial. Id. at 396. The totality of the evidence in this case, however, weighs heavily against Mr. Hardin.

The witnesses who were not called at trial would have been able to testify only to the fact that Mr. Hardin and the victim were seen together in the months prior to the rape and to the fact that Mr. Hardin was seen near the victim’s apartment building prior to the rape. The evidence might have included testimony from James McNeely, the security guard at the victim’s apartment complex. Mr. McNeely testified at the postconviction hearing that he saw Mr. Hardin visiting the victim’s apartment building “in the evening time a couple of times and one time at night.” Mr. McNeely could not confirm the dates on which he saw Mr. Hardin, and testified that he had never seen Mr. Hardin and the victim together. Another potential witness was Mr. Hardin’s friend, Henry Ray Harper, who testified at the hearing that, sometime in the summer of 1997, he traveled with Mr. Hardin to pick up the victim in Hot Springs. The trio then traveled back together to his house in Little Rock, where Mr. Harper saw Mr. Hardin and the victim “acting like lovebirds . . . like they, you know, had made up and were getting back together.” Another potential witness, a Little Rock police officer, took a report from Mr. Hardin twelve days before the rape. According to the report, Mr. Hardin’s car had been vandalized while parked near the victim’s apartment budding one evening. Although the police report places Mr. Hardin near the victim’s apartment, it also reflects that he gave the officer a North Little Rock address, and not the victim’s address, as his home address. From this evidence, it would have been just as likely for the jury to infer that Mr. Hardin was stalking the victim rather than visiting her.

The victim admitted to having a relationship with Mr. Hardin in 1996, but denied having any contact with him after she moved back to Little Rock in October 1997. Thus, some of the proposed testimony by the witnesses who were not called to testify at the trial might suggest the victim and Mr. Hardin had been dating immediately prior to the rape, contrary to the assertions of the victim. However, even if the omitted evidence had been used to attack the victim’s credibility at trial, it would not have been strong enough to show a reasonable probability of a different outcome at trial. Regardless of any prior relationship between the victim and Mr. Hardin, the evidence indicates that the encounter in question was one involving violence and not consent. Other testimony came out at trial, as well as physical and medical evidence, indicating that a rape occurred.

The officer who responded to the victim’s 911 call testified that “the door was kind of kicked in . . ., [t]here were several dents around the door knob . . ., the dead bolt was kind of dented in a litde bit” and the safety chain was broken. He also testified that the victim appeared injured and he called an ambulance. The emergency physician who examined the victim after the rape testified that, although the rape kit detected no sperm in the victim’s vagina, she had nicks, or tears, in her vagina and cervix that were consistent with “recent sexual intercourse or some type of other physical trauma to the genital area,” as well as reddened areas on her lower neck and right elbow. He testified that her injuries implied vigorous sexual intercourse that could be consistent with someone who was raped by force. Katrena Polite, a friend of the victim’s, testified that she saw the victim the night of the rape and she was “frantic,” “upset,” “crying,” “uncontrollable,” and “couldn’t speak.” She also testified that the victim had injuries or bruises on her neck, knee, legs, and arms. The victim stayed with Ms. Polite for three days after the incident until her father arrived. The victim’s father testified that prior to the rape his daughter was in fear of Mr. Hardin and that two days after the rape, “she was a wreck . . . she couldn’t hardly walk . . . she was crying and she was nervous . . . [s]he said that she had been ripped.” Furthermore, the victim testified that Mr. Hardin called her at work on December sixteenth and promised he would move to Michigan and she “wouldn’t have anything else to worry about” if she would drop the charges against him.

Also, as this court is required to consider the totality of the evidence, we must consider that, in allowing Mr. Hardin to testify, Mr. Weber would have potentially opened the door to a large volume of evidence of prior bad acts committed by Mr. Hardin against the victim. As previously stated, the victim’s father testified that his daughter feared Mr. Hardin. At the postconviction hearing, the victim’s father also recounted an incident in which Mr. Hardin broke into the victim’s apartment, poured Purex all over her clothes, and stole her VCR. The evidence also could have shown that, in 1996, the victim filed a domestic abuse petition against Mr. Hardin and was granted an order of protection. She eventually left the State of Arkansas because Mr. Hardin had made threats against her and her family. Mr. Harper acknowledged at the postconviction hearing that the first relationship between the victim and Mr. Hardin “didn’t work out too well,” and that they “kind of, you know, got into a big argument and a big fight and this and that.” He even admitted telling Mr. Hardin, “man, I wouldn’t be talking to this girl because, you know, y’all had bad terms.” Finally, according to the victim’s own testimony, Mr. Hardin saw and approached her at a local mall in November 1997, called and threatened her at work on November 26, and kicked in the door of her apartment and raped her on November 30. Mr. Swain, the manager of security for Baptist Health, corroborated the victim’s testimony about the threatening phone call on November 26. He testified that the victim contacted him on that date to fill out a complaint regarding an individual who had called and threatened her life. The victim also expressed fear that the caller might come onto her employer’s property. She gave a description of Mr. Hardin and asked security to be on the lookout; she also asked for escorts to and from her car. A police report dated November 26, 1997, reflects that the victim filed a complaint against Mr. Hardin in which she stated that he threatened to kill her and vandalize her home.

Based on the foregoing, it is evident that the conviction in this case is supported by an overwhelming record. In granting postconviction relief, the trial court clearly erred because it failed to find that any of counsel’s purported deficiencies prejudiced Mr. Hardin. Indeed, such a finding cannot be made when considering the totality of the evidence. Given the overwhelming evidence against Mr. Hardin, there is no reasonable probability that the omitted evidence would have changed the outcome of the trial. In reversing and remanding this case to the trial court, the majority ignores both established law and the overwhelming record supporting the jury’s verdict.

For these reasons, I conclude that Rule 37 relief is not warranted and the judgment of the trial court should be reversed.

Arnold, C.J., and Glaze, J., join in this dissent.


source: Caselaw Access Project

author: R AY THORNTON, Justice.

license: Public Domain

text:
    Oscar STILLEY v. Margaret JAMES, Rick Grinnan, Linda Varado, Alban Varado v. John Speed
    01-88
    60 S.W.3d 410
    Supreme Court of Arkansas
    Opinion delivered November 29, 2001

      Oscar Stilley, for appellant.

      Cross, Gunter, Witherspoon, & Galchus, P.C., by: Abraham W. Bogoslavsky, for appellees.
   R AY THORNTON, Justice.

Appellant, Oscar Stilley, appeals the October 10, 2000, and October 31, 2000, orders of the Sebastian County Circuit Court, granting appellees, Margaret James, Rick Grinnan, Alban Varnado, and Linda Varnado (“appellees”), and separate appellee, John Speed (“separate appellee”), attorney’s fees pursuant to Ark. Code Ann. § 16-22-308 (Repl. 1999). Appellant raises three points for reversal: (1) the trial court erred in granting judgment on the underlying claim because appellees were not properly prevailing parties, and, thus, the attorney’s fees should be stricken; (2) the trial court erred in granting attorney’s fees and costs without hearing, notice, or opportunity to defend, and before expiration of the time for response; and (3) the trial court erred in ruling that a purported third-party beneficiary to a claimed contract may recover attorney’s fees under the statutory provision allowing attorney’s fees in contract actions. We affirm.

On May 9, 2000, appellees specifically sought costs and attorney’s fees in their complaint against appellant in the underlying indemnity-agreement case, and, on September 13, 2000, the circuit court ruled in favor of appellees on the merits. On October 5, 2000, appellees filed a motion for costs and attorney’s fees as prevailing parties in the underlying case against appellant. On October 10, 2000, the circuit court granted appellees costs of $319.26, pursuant to the Arkansas Declaratory Judgment Act, which is codified at Ark. Code Ann. §§ 16-111-101—109 (1987), and attorney’s fees in the amount of $5,182.00, pursuant to Ark. Code Ann. § 16-22-308. On October 11, 2000, after the circuit court had entered its order granting attorney’s fees, appellant filed his response to the motion for costs and attorney’s fees.

On June 7, 2000, separate appellee specifically sought costs and attorney’s fees in his cross-complaint against appellant in the underlying indemnity-agreement case, and, on September 13, 2000, the circuit court ruled in favor of separate appellee on the merits. On October 31, 2000, separate appellee filed a motion for costs and attorneys fees as a prevailing party in the underlying case against appellant. On November 1, 2000, the circuit court granted costs of $322.80, pursuant to the Arkansas Declaratory Judgment Act, and attorney’s fees in the amount of $3,357.00, pursuant to Ark. Code Ann. § 16-22-308.

On November 6, 2000, appellant filed an objection to the fees and to the process of granting fees. On November 27, 2000, the circuit court held a hearing to reconsider its order granting costs and attorney’s fees to separate appellee and to consider appellant’s objection to the fees. On November 30, 2000, the circuit court affirmed its order granting costs and attorney’s fees. It is from these orders that appellant brings this appeal.

It is well established that due to the trial judge’s intimate acquaintance with the record and the quality of service rendered, we usually recognize the superior perspective of the trial judge in determining whether to award attorney’s fees. Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). Accordingly, an award of attorney’s fees will not be set aside absent an abuse of discretion by the trial court. Id. (citing State Farm Fire & Cas. Co. v. Stockton, 295 Ark. 560, 750 S.W.2d 945 (1988)).

For his first point on appeal, appellant argues that if we were to decide the underlying indemnity-agreement appeal in his favor, appellees and separate appellee would no longer be prevailing parties, as required by Ark. Code Ann. § 16-22-308, and the fees granted by the circuit court should be stricken. We have held that one must prevail on the merits in order to be considered a prevailing party under Ark. Code Ann. § 16-22-308. Burnette v. Perkins & Assoc., 343 Ark. 237, 33 S.W.3d 145 (2000).

We have decided the underlying appeal involving the indemnity-agreement issue in favor of appellees. See Stilley v. James, 345 Ark. 362, 48 S.W.3d 521 (2001). Because appellees prevailed on the merits, they were clearly prevailing parties under Ark. Code Ann. § 16-22-308. Accordingly, this argument is wholly without merit.

For his second point on appeal, appellant argues that the trial court erred in granting attorney’s fees and costs to appellees and separate appellee without a hearing, notice, or opportunity to defend, and before expiration of the time for response, and, in so doing, faded to afford him due process. Appellant further argues that by granting the motions for attorney’s fees without providing him notice, a hearing, or an opportunity to defend, and before expiration of the time for response, the circuit court failed to conduct itself impartially. We disagree and affirm.

Our general rule relating to attorney’s fees is well established. Attorney’s fees are not allowed except when expressly provided for by statute. Chrisco, supra (citing Damron v. University Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988)). Ark. Code Ann. 16-22-308 addresses attorney’s fees in certain civil actions and provides in pertinent part as follows:

In any civil action to recover on . . . breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.

Id. (emphasis added). The word “may” is usually employed as implying permissive or discretional, rather than mandatory, action or conduct and is construed in a permissive sense unless necessary to give effect to an intent to which it is used. Chrisco, supra (citing Dunn v. Dunn, 222 Ark. 85, 257 S.W.2d 283 (1953)).

In the present case, we cannot say that the circuit court violated appellant’s due process rights when it granted the motions for attorney’s fees. We note that both appellees and separate appellee asked for attorney’s fees in their respective pleadings in the underlying circuit court action. It appears from the statute that the trial court could have made a determination regarding attorney’s fees at any time subsequent to its September 13, 2000, ruling on the indemnity agreement in favor of appellees and separate appellee. While the circuit court granted appellees’ motions for attorney’s fees five days after they filed their motion for attorney’s fees and one day after separate appellee filed his motion for attorney’s fees, and prior to any response by appellant, we note that under Ark. Code Ann. § 16-22-308, the circuit court may assess reasonable attorney’s fees in a contract action to a prevailing party, which both appellees and separate appellee clearly were. Appellant has not cited any persuasive authority that the trial court was required to permit appellant to respond to the motion prior to the court’s decision to award attorney’s fees. We have stated on many occasions that we will not consider the merits of an argument if the appellant fails to cite any convincing legal authority in support of that argument, and it is otherwise not apparent without further research that the argument is well taken. Maddox v. City of Fort Smith, 346 Ark. 209, 56 S.W.3d 375 (2001) (citing Ouachita Trek Dev. Co. v. Rowe, 341 Ark. 456, 17 S.W.3d 491 (2000); Matthews v. Jefferson Hospital Ass’n, 341 Ark. 5, 14 S.W.3d 482 (2000)). Because appellant was aware that attorney’s fees had been requested from the time of the commencement of the underlying indemnity-agreement action, we cannot say that appellant did not have notice or an opportunity to request time to file a response or to seek a hearing.

We further note that the circuit court, by its own action, scheduled a hearing, which was held on November 27, 2000, to permit appellant to voice his objections to the award of costs and attorney’s fees. The circuit court heard appellant’s objections to the fee granting process, as well as his further argument that the circuit court erred in concluding that appellant was liable for damages on the underlying indemnity agreement, and affirmed its decision to grant the motions. Therefore, we conclude that the circuit court did not violate appellant’s due process rights by granting the motions for attorney’s fees without a response or a hearing. Appellant also argues that the circuit court was biased and abused its discretion. In light of the foregoing analysis, and based upon our standard of review, we cannot say that the circuit court failed to act impartially or abused its discretion in granting the motions for attorney’s fees.

For his final argument on appeal, appellant argues that the trial court erred in ruling that appeüees, as third-party beneficiaries to the indemnity agreement in the underlying case, may recover attorney’s fees under Ark. Code Ann. § 16-22-308, which permits the trial court to grant attorney’s fees to the prevailing party in contract actions. We disagree.

We have expressly held that third-party beneficiaries are entitled to recover attorney’s fees under Ark. Code Ann. § 16-22-308. For example, in Little Rock Wastewater Util. v. Larry Moyer Trucking, Inc., 321 Ark. 303, 902 S.W.2d 760 (1995), we stated:

A party may recover for damages from breach of contract when that party is a third-party beneficiary of the contract. Howell v. Worth James Constr. Co., 259 Ark. 627, 535 S.W.2d 826 (1976). It follows that a third-party beneficiary may recover attorney’s fees under the statute that allows such fees for breach of contract.

Little Rock Wastewater, supra.

Similarly, in the present case, because appellees were third-party beneficiaries to the indemnity agreement, they may recover attorney’s fees under Ark. Code Ann. § 16-22-308. Therefore, appellant’s argument is meridess, and we affirm on this point as well.

Finding no reversible error, we affirm.

       Appellant does not argue that Ark. R. Civ. P. 54(e) and Ark. R. Civ. P. 78(b) & (c) are applicable to the question whether a hearing, notice, or an opportunity to defend was required before the circuit court addressed appellees’ and separate appellee’s motions for costs and attorney’s fees. With reference to that issue, we note that Ark. R. Civ. P. 54(e)(3) provides, in pertinent part:
      (3) On request of a party or class member, the court shall afford an opportunity for adverse submissions with respect to the motion in accordance with Rule 43(c) or Rule 78.

        Id. (emphasis added).
      Here, appellant failed to request an opportunity to file a response, or to request a hearing, but the trial court, by its own action, afforded appellant such an opportunity when it held a hearing on November 27, 2000. See infra.

       Appellant has failed to cite any persuasive authority to support his position. Appellant relies on Ark. R. Civ. P. 12(i) for the proposition that he was entitled to an opportunity to respond to the motion for attorney’s fees. Rule 12(i) provides, in pertinent part:
      Rule 12. Defenses and Objections — -When and How Presented — By Pleading or Motion — Motion for Judgment on the Pleadings.
      # l|' ‡
      (i) Responses to Motions. If a party opposes a motion made under this or any other rule, he shall file his responses, including a brief in support, within ten (10) days after service of the motion upon him.

        Id. By reading this rule in context, it is clear that this section is applicable only with respect to motions for judgment on the pleadings — not motions for attorney’s fees. In addition, appellant’s reliance upon Mathews v. Eldridge, 424 U.S. 319 (1976) and Washington v. Thompson, 339 Ark. 417 (1999), for the principle that the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner, is misplaced. Because appellant was aware that attorney’s fees had been requested from the time of the commencement of the underlying indemnity-agreement action, he was clearly afforded the opportunity to be heard at a meaningful time and in a meaningful manner.

        See Stilley, supta, where we expressly held that appellees are third-party beneficiaries to the indemnity agreement because, pursuant to Ark. Code Ann. § 16-111-104 (1987), they are “interested parties” whose “rights, status, and other legal relations are affected by a contract.” Stilley, supra. We further held that appellees are third-party beneficiaries to the indemnity agreement because Arkansas law is clear that “a contract made for the benefit of a third party is actionable by such third party,” and the indemnity agreement was made for the benefit of appellees because it provided that appellant would pay money to appellees if they obtained a judgment against separate appellee. See id.


author: J IM HANNAH, Justice.

text:
    Diane CLARK v. FARMERS EXCHANGE, INC.
    01-475
    61 S.W.3d 140
    Supreme Court of Arkansas
    Opinion delivered November 29, 2001

      Stephen Lee Wood, P.A., by: Stephen Lee Wood, for appellant/ cross-appellee.

      Paul L. Davidson and Boyer, Schrantz, Rhoads & Teague, PLC, by: Ronald L. Boyer and Johnnie Emberton Rhoads, for appellee/ cross-appellant.
   J IM HANNAH, Justice.

This case concerns an action under the Arkansas Civil Rights Act. Appellant Diane Clark asserts the circuit court erred when it denied her postjudgment motion to transfer her action to chancery court for assessment of additional damages in equity. Clark selected the circuit court as her forum and tried her case to a jury, which she asked to determine liability and damages. She made no attempt to transfer the case to chancery until after she had proceeded to final judgment in the case. If the courts had concurrent jurisdiction, Clark would have had the right to apply to either. When she made the choice of circuit court, as she clearly did by trying the case to completion there, she selected the forum, and a decision of the circuit court is binding on her and is res judicata. The denial of the postjudgment motion to transfer to chancery was not error.

Cross-Appellant Farmers Exchange, Inc. (the Exchange) alleges the jury verdict must fail because it is not supported by substantial evidence. Significant evidence was presented by both sides as to what occurred. The jury was left to decide who was telling the truth, and the jury awarded Clark $12,600. The evidence apparently believed by the jury proves the facts beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. The jury verdict is supported by substantial evidence. We affirm.

Facts

At the time of her termination, Clark was general manager of the Farmers Exchange. She had been employed by the Exchange for seventeen years, having held the position of general manager for about a year. Clark alleges that although she was diagnosed with multiple sclerosis in 1992, and the Exchange was aware of her condition from that time, her symptoms never affected her job performance. Further, she alleges that she was never told that her job performance was a concern.

Several weeks before her termination in February 1999, Clark was placed on a ninety-day medical leave by the Exchange. The Exchange told her the leave was to allow her to recuperate and return to work. Clark alleges she never asked for this leave and that her doctor never recommended such a leave. She additionally asserts that when she was told to take the medical leave, nothing was said about her job performance, and additionally, that even when she was terminated some weeks later, again, nothing was said about her job performance. Thus, Clark alleged her termination was based upon her physical disability and that she thereby suffered discrimination in employment.

The Exchange asserts Clark was a valued employee up to and including her promotion to the position of general manager, but that shortly thereafter in 1998, Clark began to experience serious physical problems, personnel problems with workers, and problems with the board of directors. Board members testified that they noticed Clark was becoming unable to see well enough to deal with facts and figures, and that she was becoming unable to speak with enough clarity to communicate in board meetings or effectively run the business. The members of the board became concerned about the quality of operation of the Exchange under Clark’s management.

According to the Exchange, Clark was terminated because of incompetent management. They assert more specifically that she was unable or unwilling to perform her duties in an adequate fashion. Board member Mr. Glenn Featherston testified to problems with the advertising budget, which he stated the board asked Clark to reduce, and instead she increased. He also testified that she was instructed to pay down a bank note, but she did not. Featherston additionally testified that the board was concerned about an unusually high turn over in employees and in a failure to properly train and cross train employees. Featherston testified further that Clark was given specific instruction on declining further credit to certain accounts, and she failed to comply. The board believed that by November 1998, Clark simply was not functioning, and they had to do something. They decided to place Clark on a ninety-day sick leave with pay and benefits to allow her to see if she could recuperate. Assistant Manager Jim Patterson was asked to serve temporarily as manager in Clark’s absence and was compensated therefore. For this ninety days, the Exchange paid two general managers. Clark was to take the time off and see if she could recuperate. However, according to Featherston, Clark chose instead to come to the Exchange and interfere in management and employee supervision rather than take the time off as instructed. As a result, four of the nine employees told Patterson they would not continue in employment if Clark returned. Again, according to Featherston, Clark was told to allow Patterson to run the Exchange, and she would not do so. At a board meeting in February 1999, it was decided Clark should be terminated. Clark disputed these events in her testimony when she took the stand.

In 1992, Clark first experienced an inability to move her right hand, and then she suffered some form of light seizures. She was diagnosed with multiple sclerosis. The Exchange was aware of Clark’s illness from the beginning. It appears that with medication, the symptoms were kept in abeyance until 1998. At this point Clark began to suffer substantial problems from the disease. It is clear her illness played a role in the problems that gave rise to her termination. As noted, board members testified that as they neared November 1998, Clark was unable to see well enough or communicate well enough to handle board meetings. Clark asserts she told the board she was about to start a new medication at the time she was placed on medical leave.

Clark filed suit in circuit court. Her complaint included a paragraph which asserted that “upon a finding of discrimination, this action should be transferred to the Chancery Court” for purposes of granting an injunction and to award “front pay.” It thus appears Clark believed she was due damages in chancery in addition to those she was seeking in circuit court. Clark did not argue below that her civil trial should somehow be bifurcated. She did not move to transfer the case to chancery until after a final judgment was entered in circuit court. Clark filed her action in circuit court and then submitted her case to the jury. A verdict was returned in Clark’s favor in the amount of $12,600 for lost wages and insurance benefits. She had sought back pay and lost-employment benefits, compensatory damages, and punitive damages as the affirmative relief listed in her complaint. A final judgment in Clark’s case was entered by the trial court on August 3, 2000.

Clark brings her appeal arguing her postjudgment motion to transfer to chancery was denied in error. The Exchange cross-appeals asserting a lack of substantial evidence to support the jury’s verdict.

Choice of Forum

This case was tried in circuit court in the summer of 2000 and judgment was entered on August 3, 2000. In the judgment, paragraph E stayed execution on the judgment until a final order was issued on a motion to transfer the cause to chancery. Thus, Clark maintained the right to some sort of postjudgment assessment of damages in chancery. However, a judgment is a final determination of the rights of the parties in an action. Shappy v. Knight, 251 Ark. 943, 475 S.W.2d 704 (1972); Melton v. St. Louis I. M. & S. Ry. Co., 99 Ark. 433, 139 S.W. 289 (1911).

In the complaint, Clark stated that “upon a finding of discrimination” she intended to transfer the cause to chancery. Clark, however, made no attempt to transfer her cause to chancery until after she allowed the entire decision on liability and damages to be made in circuit court. She now asserts a right to some sort of postjudgment assessment of additional damages. This she may not do. Clark may not maintain an action in chancery after the action was decided in circuit court. As this court stated in Hooper v. Ragar, 289 Ark. 152, 711 S.W.2d 148 (1986), in such situations as this where the choice of forum has been made, the appellant has had her day in court and is not entitled to a second chance. This court in Burns v. First Nat’l Bank, 336 Ark. 406, 985 S.W.2d 747 (1999), cited Moore v. Price, 189 Ark. 117, 70 S.W.2d 563 (1934), wherein this court stated:

Circuit courts and chancery courts are of equal dignity; and in cases where there is concurrent jurisdiction, the court that first acquires jurisdiction has the right and jurisdiction to conduct the matter to an end without interference of another court of equal dignity. Wright v. LeCroy, 184 Ark. 837, 44 S.W.2d 355 (1931).

Clark complains, however, that the Arkansas Civil Rights Act provides additional remedies that are undefined in the Act but which must be obtained in chancery. Although it is not clear from the briefs, we must assume that the reason the action was filed in circuit court was because the prayer for relief included punitive damages.

The Arkansas Civil Rights Act in Ark. Code Ann. § 16-123-107(c)(1)(A) (Supp. 2001) provides the court:

[M]ay issue an order prohibiting the discriminatory practices and provide affirmative relief from the effects of the practices, and award back pay, interest on back pay, and, in the discretion of the court, the cost of litigation and a reasonable attorney’s fee.

In paragraph (c)(2)(A), it provides that punitive damages are allowed to the extent of the amounts set out thereafter.

It is true that if Clark had filed this action in chancery, or if Clark had requested the matter be transferred to chancery for the chancery court to consider all the requested remedies including injunctive relief and front pay under the “clean-up doctrine,” she might have been found to have waived any right to punitive damages. Roach v. Concord Boat Corp., 317 Ark. 474, 880 S.W.2d 305 (1994); Stoltz v. Franklin, 258 Ark. 999, 531 S.W.2d 1 (1975). Equity cannot generally award punitive damages. Had this case been brought in chancery, or had it been transferred to chancery, the Exchange would have only needed to object to stop the award of punitive damages. At the same time, had there been no objection, the chancery court would not have been without authority to award damages normally awarded in circuit court. Towell v. Shepherd, 286 Ark. 143, 689 S.W.2d 564 (1985); McNamara v. Bohn, 69 Ark. App. 337, 13 S.W.3d 185 (2000).

We need not address this issue, however, because Clark made no attempt to seek relief in chancery until a final judgment was already entered in circuit court. Clark waived all equitable remedies she may have had by failing to move that the matter be transferred to chancery court. Had Clark desired the equitable remedies she now seeks, she should have moved to transfer the case to chancery court rather than let it go to the jury in circuit court. Towell, supra. Where there is a failure to object to jurisdiction, it will be considered consent to such jurisdiction. Towell, supra. As noted in the concurring opinion in Union Nat’l Bank v. Hooper, 295 Ark. 83, 746 S.W.2d 550 (1988), the rule is that failure to move to transfer to chancery acts as a waiver of the equitable remedies available there. This has long been the case. Even though chancery may have concurrent jurisdiction with a court of law of the subject matter at issue, a party who chooses to remain in circuit court will be held to such election. Jamison v. May, 13 Ark. 600 (1853). A party must suffer the consequences of the forum they choose. Hesser v. Johns, 288 Ark. 264, 704 S.W.2d 165 (1986).

The Act provides for “a civil action.” Clark chose circuit court. If the courts had concurrent jurisdiction, Clark would have the right to apply to either. But, when she filed in circuit court, she selected the forum, and “a decision of that court would be binding on her — would be res judicata.” Caldwell v. Fitzhugh, 175 Ark. 801, 300 S.W 395 (1927). One of the main purposes of the doctrine of res judicata is to put an end to litigation by precluding a party who has had the opportunity for one fair trial from drawing the same controversy into issue before the same or a different court. Taggart v. Moore, 292 Ark. 168, 729 S.W.2d 7 (1987). Clark took the case to decision in circuit court. She had her day in court and is not entitled to a second chance. Hooper, supra. It has long been the rule that a plaintiff who deliberately selects the forum is bound by the outcome. Taggart, supra; Robertson v. Evans, 180 Ark. 420, 21 S.W.2d 619 (1929). The judgment acted as a final adjudication on the merits. Greene v. Pack, 343 Ark. 97, 32 S.W.3d 482 (2000). Thus, there is no merit to Clark’s postjudgment motion to transfer to chancery.

Cross-Appeal

The Exchange argues the jury verdict is not supported by substantial evidence. When a jury verdict is challenged, the court will affirm the verdict and judgment of the trial court if the verdict is supported by any substantial evidence, with the evidence and all reasonable inferences therefrom examined in the light most favorable to the appellee. John Cheeseman Trucking, Inc. v. Dougan, 313 Ark. 229, 853 S.W.2d 278 (1993); Schuster’s Inc. v. Whitehead, 291 Ark. 180, 722 S.W.2d 862 (1987). Further, a jury verdict will be disturbed only when fair-minded persons could not draw the conclusion reached by the jury. Cheeseman, supra.; Pine View Farms, Inc. v. A.O. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989).

The jury was presented with conflicting testimony. Clark took the stand and disputed the testimony given by the Exchange witnesses. She testified on the issue of her extension of credit that the Exchange alleged should not have been extended, and on a number of employee issues raised by the Exchange, as well on issues of accounts and use of funds. Clark denied the assertions of the Exchange witnesses, and the jury was left to decide who was telling the truth. As such, it was an issue of the credibility of a witness, which is an issue for the jury. Sanders v. Mincey, 317 Ark. 398, 879 S.W.2d 398 (1994); Mays v. State, 303 Ark. 505, 798 S.W.2d 75 (1990).

Substantial evidence is evidence that goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Madden v. Aldrich, 346 Ark. 405, _ S.W.3d _ (2001); Ethyl Corp. v. Johnson, 345 Ark. 476, 49 S.W.3d 644 (2001). It appears the jury believed Clark and her witnesses over those of the Exchange. This may constitute substantial evidence. Therefore, viewing this matter in the light most favorable to Clark, it appears the verdict is supported by substantial evidence, and the cross-appeal is, therefore, denied.

Affirmed.

       Pursuant to the passage of Arkansas Amendment 80, which went into effect on July 1, 2001, our state courts are no longer separated into chancery and circuit courts. Rather law and equity has been merged and the courts have been merged and now carry only the designation of “circuit court.” Because law and equity have been merged, the circuit courts can award not only legal remedies, but also traditional equitable remedies. In the future, individuals will not have to elect in which “court” to file their lawsuit.


text:
    Robert WILLIAMSON and Cliff Haydell v. SANOFI WINTHROP PHARMACEUTICALS, INC.
    01-345
    60 S.W.3d 428
    Supreme Court of Arkansas
    Opinion delivered November 29, 2001

      Andrew L. Clark, for appellants.

      Friday, Eldredge & Clark, LLP, by: Kevin A. Crass, for appellee.
   J IM HANNAH, Justice.

Appellant Robert Williamson appeals the Pulaski County Circuit Court’s decision denying class certification to a group of employees from Sanofi Winthrop Pharmaceuticals, Inc. (Sanofi), the appellee. The trial court found that Williamson could not. meet the requirements of establishing commonality and superiority for class certification. We affirm.

This case centers around a bonus program for pharmaceutical sales people. During 1996, Sanofi held a sales promotion known as “Share in the Success.” Under the program, sales representatives could earn $1,000, $2,000, or $4,000 bonuses if their sales region exceeded its performance from the previous year. Each of three regions had the opportunity to exceed a budgeted regional growth objective from the prior year in three business units: cardiovascular, injectable, and specialty products. Williamson worked in Central Region-2, which contained approximately sixty-three commissioned sales people.

As part of the program, Sanofi first published a booklet entitled “1996 Sales Incentive Program,” which described the program as depending on increased sales as compared to a regional standard. However, throughout the following year as the program was ongoing, Sanofi distributed monthly reports to each salesperson detailing each person’s performance for the month, and updating how each region was doing in the program. Sanofi hired the outside firm Simulate, Inc., to prepare the monthly reports. Unfortunately, while the program was created to be based on a “regional” growth objective, Simulate’s reports sent to each sales person were based on the national growth objective, which for some was an easier standard to meet. Every one of Williamson’s reports indicated that his sales were above the national average and that he was on track to receive the year-end $4,000 bonus. The dispute in this case stems from this series of incorrect reports. While the “Share in the Success” program required a certain increase in regional sales over the year, the reports contained a comparison to the “national” performance for all three business units.

In early 1997, Sanofi notified Williamson and other employees that they would be receiving their incentive payouts on May 15, 1997. In fact, Williamson received a phone call on May 12, 1997, from a manager who told him that he and others would receive the payment. However, before payment was made, Sanofi realized the mistake in the reporting of the program and denied payment. Specifically, Sanofi found that each salesperson’s monthly reports tracked his or her sales compared to the national average, but did not track each to the regional growth objective, which was higher than the previous year’s national averages in each business group.

Williamson filed a complaint on .March 30, 1998, alleging a breach-of-contract claim and asking that the court certify the commissioned sales representatives as a class. Sanofi answered on April 29, 1998, claiming that the class should not be certified, and that Williamson and the other sales people did not qualify for the incentive bonus because they did not meet the projected regional sales requirements. Sanofi also noted that the incorrect monthly reports were prepared by a third party.

On June 28, 2000, Williamson filed a specific motion to certify the class. Sanofi responded on August 16, 2000, arguing that each potential class member was not necessarily in the same position as another because it is unclear whether they each entered into a contract or believed that they entered into a contract merely by raising their sales numbers after the program was started. A hearing was held on this motion on August 21, 2000, at which no witnesses testified. After discussion of the elements to certify a class under Ark. R. Civ. P. 23, the trial court ruled from the bench that he did not find that there was a common question among the potential class members because each member may have had a different understanding of the incentive program or may have known that the reported numbers were in error. The trial court filed its written order on August 24, 2000, and stated the same. The trial court also found that a class action was not the superior method for adjudicating the claims of the individual plaintiffs. Williamson filed his notice of appeal on September 22, 2000.

On appeal, Williamson lists the six Rule 23 requirements for certifying a class, and argues that the trial court erred in failing to certify the class due to a lack of commonality in claims by the potential class members. While he lists all six Rule 23 requirements to satisfy class-action status, he offers little if any argument for the other five elements. On the commonality issue, Williamson argues that the questions of law and fact are similar for each potential class member as they each qualified for the incentive program, they are all employees of Sanofi, and none of them received payment under the program. Williamson argues that merely by increasing sales, each potential class member accepted the “offer” proposed by Sanofi so that a contract was formed. Sanofi responds that this case does not lend itself to a class action because it requires each sales person to establish that he or she believed that the program had changed so that the national performance numbers replaced the regional performance numbers. Sanofi argues that the bar graphs in the graphic comparisons mailed to each employee demonstrated that the region did not meet the regional sales growth criteria, although the narrative above the graph indicated that the sales were compared to the national performance for each product. Because of this, Sanofi argues that each employee’s understanding of the program and how and whether it applied to him or her is an individual question the court would have to ask each person to determine if each person thought a contract was formed. Therefore, the action is not proper as a class action.

The issue before this court is only one of class certification. In our review of a trial court’s decision to grant class certification, we have said that trial courts are given broad discretion in matters of class certification, and we will reverse the trial court’s ruling only when the appellant can demonstrate an abuse of that discretion. BPS Inc. v. Richardson, 341 Ark. 834, 20 S.W.3d 403 (2000); Baker v. Wyeth-Ayerst Laboratories Division, 338 Ark. 242, 992 S.W.2d 797 (1999); Seeco, Inc. v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997); Mega Life & Health Ins. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997). Although we do not delve into the merits of the underlying claims in a potential class-action case, we will review the trial court’s order to determine whether the requirements of Rule 23 are satisfied. BPS, Inc., supra.

On the merits, Rule 23 of the Arkansas Rules of Civil Procedure details the requirements for a class-action suit. It states:

(a) One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this section may be conditional and it may be altered or amended before the decision on the merits.

This court has reviewed the provisions of Rule 23 on numerous occasions and has held that in order for a class-action suit to be certified six factors must be met. Specifically, the party seeking certification must establish: (1) numerosity; (2) commonality; (3) predominance; (4) typicality; (5) superiority; and (6) adequacy. BPS Inc., supra. When the court reviews a class-action certification, it will review the trial court’s analysis of the factors upon which certification must be based. Specifically, the court has held that:

[Wjhether to certify a class “is not ‘whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 . . . are met.’ ” As we observed, “it is totally immaterial whether the petition will succeed on the merits or even if it states a cause of action. . . .” Id. “[A]n order denying or granting class certification is separate from the merits of the case.”

Direct Gen. Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997) (citing Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders, 323 Ark. 706, 918 S.W.2d 129 (1996)).

Rule 23(a)(2) of the Arkansas Rules of Civil Procedure requires a determination by the trial court that “there are questions of law or fact common to the class.” See also, Mega Life, supra. A review of our case law reveals that this requirement is case-specific. Professor Newberg’s treatise on class actions explains that:

[T]he common question prerequisite is interdependent with the notion of joinder impracticability under Rule 23(a)(1). Consideration of the common question issue requires an answer to the question: Common to whom?”
* * *
Rule 23(a)(2) does not require that all questions of law or fact raised in the litigation be common. The test or standard for meeting the rule 23(a)(2) prerequisite is . . . that is there need be only a single issue common to all members of the class. . . . When the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected.

Herbert B. Newberg, Newberg on Class Actions, § 3.10 (3d ed. 1993). The trial court must determine what elements in a cause of action are common questions for the purpose of certifying a class.

Several Arkansas cases have dealt specifically with the commonality issue in a class-action certification appeal. In Cheqnet Systems, Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995), this court found that the commonality requirement was satisfied where the class’s main claim, which applied to every member of the class, was that Cheqnet violated the Fair Debt Collection Act by collecting $10 more than it was allowed to collect on returned checks. In MegaLfe, supra, the court found that commonality was established through four common questions dealing with the applicability of insurance to the class members. The court found that “if these issues are resolved in favor of the class, the individual members will have suffered a common injury of paying premiums for a void insurance policy.” MegaLfe, 330 Ark. at 271. And, in Farm Bureau Mutual Insurance, supra, this court again found that the commonality issue was satisfied where the class members alleged that a statutory violation occurred when they all had to pay “membership dues” to the Farm Bureau Federation before insurance policies would be issued. In each of these cases, this court found that the defendant’s act, independent of any action by the class members, established a common question relating to the entire class to certify the matter as a class action. In this case, however, Sanofi’s actions cannot give rise to a cause of action for breach of contract without the prerequisite of the creation of a contract, which necessarily requires each plaintiff to show that a contract was formed between Sanofi and himself. Therefore, before even reaching any common question about breach of contract, each potential class member would have to establish the existence of a contract between himself and Sanofi before ever reaching the issue of whether that contract was breached. This does not lend itself to a class action, and distinguishes this action from those grounded in fraud or misrepresentation.

The same holds true in BNL Equity Corp. v. Pearson, 340 Ark. 351, 10 S.W.3d 838 (2000), and Seeco, Inc., supra, in which this court certified the class after a finding that common issues predominated over individual issues. Again, in BNL Equity, this court affirmed the trial court’s certification of the class in a case involving an alleged violation of the Arkansas Securities Act premised on material misrepresentations to stockholders in two public offerings. The court found that the claim of misrepresentation was the “common linchpin” of every class member’s case, and that this claim predominated over possible individual issues of establishing each class member’s knowledge and any affirmative defenses. In Seeco, Inc., this court found that common issues existed in the class members’s claims of fraud even though the elements of reliance and diligence would be issues to be decided on a person-by-person basis. In coming to this conclusion, the court stated, “The overarching issue which must be the starting point in the resolution of this matter relates to the existence of the alleged scheme” by Seeco, Inc., and others to perpetrate a fraud on royalty owners. Seeco, Inc., 330 Ark. at 414. In these two cases, this court found that the allegations of fraud, being separate and apart from any other issues of personal reliance on those representations, were common questions applicable to every class member. Such is not the case here, however, where the potential class’s claim is that of breach of contract rather than fraud or misrepresentation, a distinction which is the determining factor in this case.

Here, Williamson’s theory, as the trial court noted, is that a contract was formed when Sanofi offered the incentive program and each salesperson increased his or her sales in response. While we will not consider the merits of the underlying lawsuit, see Advance America v. Garrett, 344 Ark. 75, 40 S.W.3d 239 (2001); see also Fraley v. Williams Ford Tractor & Equip. Co., 339 Ark. 322, 5 S.W.3d 423 (1999) (holding that trial court may not consider whether plaintiff will ultimately prevail), consideration of the elements of the underlying claim is important to determine whether any questions are common to the class and whether those questions will resolve the issue. See, e.g., Liberty Lincoln Mercury, Inc. v. Ford Marketing Corp., 149 F.R.D. 65 (D.N.J. 1993). The potential class members allege that Sanofi breached a contract with them. The essential elements of a contract are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligations. Foundation Telecommunications v. Moe Studio, 341 Ark. 231, 16 S.W.3d 531 (2000); Gentry v. Hanover Ins. Co., 284 F. Supp. 626 (D.C. Ark. 1968) (cited in Hunt v. McIlroy Bank & Trust, 2 Ark. App. 87, 616 S.W.2d 759 (1981)). See also, Southern Surety Co. v. Phillips, 181 Ark. 14, 24 S.W.2d 870 (1930). We keep in mind two legal principles when deciding whether a valid contract was entered into: (1) a court cannot make a contract for the parties but can only construe and enforce the contract that they have made; and if there is no meeting of the minds, there is no contract; and (2) it is well settled that in order to make a contract there must be a meeting of the minds as to all terms, using objective indicators. Crain Industries, Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991), Hunt, supra (citing Hanna v. Johnson, 233 Ark. 409, 344 S.W.2d 846 (1961); Irvin v. Brown Paper Mills Co., 52 F. Supp. 43 (D.C. Ark. 1943), rev’d. on other grounds, 146 F.2d 232 (8th Cir. 1944)). These very requirements make a class action on a breach-of-contract claim difficult, indeed, as the element of a “meeting of the minds,” for example, necessarily requires an individual inquiry into each party’s understanding of the terms of the alleged contract, even using an objective standard. See Crain Industries, Inc., supra. This is different than a fraud or misrepresentation claim wherein a defendant’s fraudulent activity, standing alone, may give rise to a cause of action without any overt act by the plaintiff. That is not to say that a contract claim can never be certified as proper for a class action — should the case arise where a contract or contracts exist, and it is the actual breach of the established contract or contracts that is before the court, perhaps the class certification could survive. However, that is not the case here where the initial inquiry in the case turns on whether Sanofi created a contract with each salesperson, requiring inquiry into whether the elements of the creation of a contract with each salesperson are met.

As Sanofi argues and as the trial court pointed out, while there may be questions that apply to all the potential class members, the questions on which the case turns are not common to each class member. For example, Williamson supplied in his brief a list of ten questions that he argues are common to all the potential class members, and he is right. However, none of these questions contain the issues on which this case turns. For example, he notes that a common questions is “Did the appellee pay the incentive bonus?” Clearly, the answer for all potential class members is “No.” But the case does not turn on that question. It would be the same if Williamson listed a common question as “Do all the plaintiffs speak English?” Again, the answer presumably would be “yes” for all class members, but the question would get us no further in determining the outcome of the case. Rather, the trial court pointed out that the appropriate common questions for this case would include inquiries such as “Did you, the employee, believe a contract was created under the initial incentive brochure or the monthly update reports?” and “Did you, the employee, meet the sales requirements to qualify under either the initial brochure or the monthly update reports?” These are the common questions. However, they cannot be asked en masse under these facts, but rather must be asked to each individual class member, thus making the case improper for class certification under the commonality or superiority prongs of the class-action inquiry.

Rule 23 of the Arkansas Rules of Civil Procedure is comparable to Rule 23 of the Federal Rules of Civil Procedure, and this court interprets our Rule 23 in the same manner as the federal courts interpret the federal counterpart. Farm Bureau Mut. Ins. Co., supra. As such, federal cases can offer guidance on this issue. In R. W. Brooks, et al. v. Southern Bell Telephone & Telegraph Co., 133 F.R.D. 54 (S.D. Fla. 1990), the District Court found that a class should not be certified in a breach-of-contract case due to a lack of commonality in the issues. The court stated:

Here, each prospective class member’s proof of the existence and terms of his contract, and any modifications thereto, will necessarily rest on different sources. The uncommonality of fact among the putative class members on this issue is exemplified by the uncommonality of fact among the named representatives.

R. W. Brooks, 133 F.R.D. at 57. In that case, as here, not only were there written documents alleged to be written contractual terms, there were also instances of oral representations by Southern Bell’s representatives regarding the alleged agreement between the company and its employees. Such is the case here where the potential class representatives were given varying documents detailing the terms of the incentive program, documents which contradicted one another, but there were also oral representations made to Williamson that may or may not have been made to other potential class members. As in the R. W. Brooks case, whether and what terms might have existed and on which terms and representations each class member relied is an individual fact question that is not common to each member of this potential class.

In another federal case, Liberty Lincoln Mercury, Inc. v. Ford Marketing Corp., 149 F.R.D. 65 (D.N.J. 1993), the District Court entertained a class-action certification appeal from Liberty Lincoln Mercury, a car dealership and proposed class representative for other dealerships subject to Ford’s warranty reimbursement practices. The District Court denied class certification in a franchise practices lawsuit in part because the court did not find a commonality of issues. The court stated:

When the resolution of a common legal issue is dependent upon factual determination that will be different for each purported class plaintiff (and in this instance for each part sold), courts have consistently refused to find commonality and declined to certify a class. (Citations omitted.)
* 4= *■
In sum, given the individual proof necessary to establish Ford’s liability with respect to each individual Dealer and for each individual sale and part, the commonality requirement of Rule 23 (a) (s) is not met.

Liberty Lincoln Mercury, Inc., 149 F.R.D. at 76. Here, too, the court would be required to take proof from each class member to determine his or her understanding about the existence of a contract, whether the class member believed a contract existed between him or her and Sanofi, what the terms of that understanding were, whether each class member believed he or she had “accepted” an offer, assuming an offer was made, and whether any other oral representations had been made to him or her as they purportedly had to Williamson. All of these questions render a class action impractical due to the lack of common questions among the potential class members.

Furthermore, because these questions cannot be asked en masse, it also renders a class action improper because it is not the superior manner in which to handle this case. Rule 23(b) of the Arkansas Rules of Civil Procedure requires that a class action be superior to other available methods for the fair and efficient adjudication of the controversy. See Seeco, Inc., supra. We have held that the superiority requirement is satisfied if class certification is 'the more “efficient” way of handling the case, and it is fair to both sides. Baker, supra. Where a cohesive and manageable class exists, we have held that real efficiency can be had if common, predominating questions of law or fact are first decided, with cases then splintering for the trial of individual issues, if necessary. Seeco, supra; see also Summons, supra. We further note that when a trial court is determining whether class-action status is the superior method for adjudication of a matter, it may be necessary for the trial court to evaluate the manageability of the class. See BNL, supra. Under this requirement, because the trial court would have to hear each class member’s testimony regarding his or her understanding about which incentive-program paperwork applied, the regional requirements or the national requirements, as well as consider all of the evidence from each plaintiff regarding whether he or she agreed to a contract by virtue or his or her sales performance, a class action could not be a superior method of handling this case.

Finally, we reiterate that this court reviews class-action certifications or denials under an abuse-of-discretion standard, and we will not reverse the trial court’s decision unless the appellant can demonstrate that the court abused its discretion in reaching its decision. Here, we cannot say that the trial court abused its discretion in denying class certification to Williamson where Williamson’s initial hurdle of proving that each sales person made a contract with Sanofi would require the trial court from the outset to splinter its inquiry among every potential class member. This necessarily defeats class certification for lack of a common question and because this is not a superior method to resolve this conflict.

Affirmed.

       Appellant Cliff Haydell withdrew from the lawsuit as a plaintiff and class representative prior to the hearing on the Motion for Class Certification. He is listed in the style of the case because his name appears on the record. However, we will only refer to Williamson as the appellant class representative in this opinion.


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

text:
    Glenda R. ROGERS v. Irene LAMB
    01-563
    60 S.W.3d 456
    Supreme Court of Arkansas
    Opinion delivered December 6, 2001

      Christian & Byars, by: Joe D. Byars, Jr., for appellant.

      Gant & Gant, by: R. Derek Barlow, for appellee.
   w .H. “Dub” Arnold, Chief Justice.

Appellant, Glenda R. Rogers, brings the instant appeal from an order of the Crawford County Circuit Court (1) finding appellee Irene Lamb’s right of title, as the surviving joint tenant of property held by Lamb and her deceased father, superior to Rogers’s homestead claim, (2) issuing a writ of possession commanding the county sheriff to deliver the property to Lamb, (3) denying appellant’s counterclaim for equitable relief, (4) denying appellee recovery of any rental payments, and (5) denying Rogers’s motion for further proceedings and alternative motion for findings and a new trial. The court of appeals certified this case for us to consider whether a widow’s constitutional homestead rights, created by Ark. Const, art. 9, § 6, may be defeated by the survivorship interest of a joint tenant in property conveyed pursuant to Ark. Code Ann. section 18-12-106 (Supp. 2001). Our jurisdiction is authorized by Ark. Sup. Ct. R. 1 — 2(a)(1) and (d) (2001).

The instant dispute arose after the March 24, 2000 death of John D. Rogers, Lamb’s father and appellant’s purported husband. On July 28, 2000, Lamb filed a petition for ejectment against appellant based upon a warranty deed reflecting that Lamb and her father took title in 1986 to the subject property as joint tenants with rights of survivorship. According to Lamb, each paid one-half of the purchase price with the understanding that Rogers would occupy the property during his life. As a result of her father’s death, Lamb averred that she held a fee-simple absolute interest in the property, free and clear of any claim by appellant.

In response, Rogers claimed a constitutional homestead interest in the property. Alternatively, she filed a counterclaim against Lamb asking the court to acknowledge her equitable interest in the property. In particular, appellant insisted that her financial contributions towards the home’s maintenance, improvements, insurance, and taxes, entitled her to such relief. In light of the equitable counterclaim, Rogers also moved that the case be transferred to chancery court.

Following a December 6, 2000 preliminary hearing and after reviewing only the parties’ briefs, the trial court entered an order on March 7, 2001, finding that jurisdiction was proper in the circuit court, resolving the merits of the case in Lamb’s favor, and denying Rogers any equitable relief. Notably, neither party filed a motion to dismiss or a motion for summary judgment. In other words, the trial court entered its order settling the case sua sponte.

Rogers raises three points on appeal. First, she argues that the trial court erred by determining that her homestead right was inferior to Lamb’s survivorship interest in the property. Second, she challenges the validity of the trial court’s judgment in the absence of an appropriate motion filed by either party and in view of the court’s refusal to hold a hearing or accept evidence in support of her equitable claim. Third, she challenges the trial court’s decision to retain jurisdiction and its implicit denial of her motion to transfer the cause to chancery court. We find merit in appellant’s arguments, and we reverse and remand for further action consistent with this opinion. As an initial matter, we decline to address the merits of appellant’s final point on appeal. Given the people’s recent passage of Ark. Const, amend. 80, and the consequent abolition of courts of equity, the issue is moot.

Validity of March 7, 2001 order

At first glance, the instant case appears to turn upon our resolution of a substantive legal issue, namely, whether a joint tenant’s survivorship interest trumps a widow’s homestead rights. However, closer inspection of the record on appeal reveals that the case hinges on appellant’s second point, a procedural challenge to the validity of the trial court’s March 7, 2001 order. Prior to the court’s ruling, neither party was afforded the opportunity to introduce evidence or witness testimony in support of their positions. Moreover, since Lamb neither filed a motion for summary judgment, a motion to dismiss, or a motion for judgment on the pleadings, there was no resulting burden on Rogers to “meet proof with proof,” nor was there any impetus for the court to decide the case sua sponte. See Dillard v. Resolution Trust Corp., 308 Ark. 357, 359, 824 S.W.2d 387, 388 (1992) (requiring opponent to meet proof with proof, by showing a material issue of fact, once moving party makes prima facie showing of entitlement to summary judgment).

Although appellee insists that summary judgment was warranted as a matter of law, she fails to offer any argument or authority in support of a court’s granting summary judgment in the absence of a proper motion filed pursuant to Ark. R. Civ. P. 56. In any event, we are convinced that genuine issues of material fact remain in dispute. For example, the parties disagree about the relevant facts supporting a homestead right. Contrary to Rogers’s assertion, Lamb suggests that appellant did not five in Mr. Rogers’s home for a fourteen-year period but maintained another residence in Forth Smith, Arkansas. Lamb also implies, in her brief, that Rogers may not have been married to her father during the relevant period.

In the absence of evidence on these matters, the trial court’s order was based upon speculation and conjecture. Indeed, the trial court could only assume the existence of material facts, including whether appellant was married to the deceased, where she resided, and the nature and amount of any contributions she made to the property. The record is silent on these issues because there was no trial or pleadings to elicit the requisite proof.

On remand, the trial court must hold an evidentiary hearing before ruling on the merits of the existence or priority of the parties’ property rights and the extent of any equitable counterclaims. The court must have proof that appellant was in fact Mrs. John D. Rogers, the deceased’s widow, before it can even consider the applicability of an alleged homestead interest. Otherwise, the trial court puts the proverbial “cart before the horse” and entertains a purely academic question of law.

Reversed and remanded.

IMBER, J., not participating.