author: DONALD L. Corbin, Justice. ROBERT L. Brown, Justice,

text:
    BOSWELL, TUCKER & BREWSTER v. The Honorable Phillip SHIRRON
    95-964
    921 S.W.2d 580
    Supreme Court of Arkansas
    Opinion delivered April 29, 1996
    [Petition for rehearing denied May 20, 1996.]

      Boswell, Tucker, Brewster & Hicks, by: Ted Boswell, for petitioner.

      Winston Bryant, Att’y Gen., by: Patricia Van Ausdall, Asst. Att’y Gen., for appellee.

      Dudley, J., not participating.

   DONALD L. Corbin, Justice.

Petitioner, the law firm of Boswell, Tucker & Brewster, filed this original action for a writ of prohibition against respondent, the Honorable Phillip Shirron of the Saline County Circuit Court. Respondent did not respond, and we requested briefs from both parties. Boswell, Tucker & Brewster v. Shirron, 322 Ark. 111, 906 S.W.2d 315 (1995) (per curiam). Petitioner seeks a writ prohibiting respondent from exercising “any further jurisdictional authority over any Boswell law firm case” and from “presiding as the judge over any Boswell law firm litigation.” Jurisdiction of a petition for writ of prohibition is properly in this court pursuant to Ark. Sup. Ct. R. 1-2 (a) (6).

On May 25, 1995, respondent entered the following order, which is quoted in its entirety:

IN THE SEVENTH CIRCUIT COURT OF GRANT, HOT SPRING, AND SALINE COUNTIES, ARKANSAS
UNIFORM ORDER
Comes The Honorable Phillip Shirron, to transfer all cases in which the law firm of Boswell, Tucker and Brewster represents any party, to the other divisions of the Seventh Circuit Courts.
IT IS SO ORDERED.
/s/ Phillip Shirron
The Honorable Phillip Shirron
Circuit Judge
Date 5/25/95

On June 2, 1995, respondent entered the following order, which we also quote in its entirety:

IN THE SEVENTH CIRCUIT COURT OF GRANT, HOT SPRING, AND SALINE COUNTIES, ARKANSAS
UNIFORM ORDER
Now, upon reconsideration of the Uniform Order entered by this Court on May 25, 1995, transferring all cases in which the law firm of Boswell, Tucker and Brewster represent any party to the other divisions of the 7th Circuit Courts, the Court finds that said Order should be and is hereby set aside and held for nought.
IT IS SO ORDERED.
/%/ Phillip Shirron
The Honorable Phillip Shirron
Circuit Judge
Date: 6/2/95

Petitioner asserts that, after entering the order on May 25, 1995, respondent lacked any further jurisdiction to act in any of petitioner’s cases. Respondent argues that petitioner’s attack is on the two orders themselves, not on the underlying subject-matter jurisdiction of the circuit court to enter such orders. Therefore, argues respondent, prohibition is not appropriate in this case. Respondent argues fhrther that prohibition is inappropriate because there is no record relative to the circumstances surrounding the issuance of either order. We agree with respondent’s latter argument.

A writ of prohibition is an extraordinary writ and is never issued to prevent a trial court from erroneously exercising its jurisdiction, but only where it proposes to act in excess of its jurisdiction. Ridenhower v. Erwin, 303 Ark. 647, 799 S.W.2d 535 (1990). Issuance of prohibition is discretionary in cases of pressing necessity and should never be granted unless the petitioner is clearly entitled to relief. Id. The record before us does not show that respondent is proposing to act in excess of its jurisdiction or that petitioner is clearly entitled to the relief it requests. Absent such proof, there is no basis upon which to grant the extraordinary relief requested in this case.

Petitioner contends that the reason for the entry of the May 25 order was a recusal required by respondent’s bias or prejudice against petitioner as counsel. Petitioner relies on Matthews v. State, 313 Ark. 327, 331, 854 S.W.2d 339, 341 (1993), wherein we acknowledged authority for the proposition that, “absent a statutory provision to the contrary, a determination of disqualification will not prevent a judge from reassuming full jurisdiction if the disqualification has been removed.” Despite petitioner’s strong suggestions to the contrary, the record does not reveal that the reason for the May 25 transfer order was respondent’s disqualification; nor does the record reveal that any reason for the alleged disqualification exists. In this respect, we note that the affidavit attached to petitioner’s brief is not part of the record or the supplemental record filed in this case. We do not consider the affidavit because we do not consider matters outside the record. Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257 (1996).

In summary, there is no record to demonstrate any reason for the transfer order, any alleged disqualification, or any continuing reason for any alleged disqualification. There is no identification of which cases, if any, were transferred to other divisions as a result of the May 25 order. Likewise, there is no indication that respondent has taken action in any specific case involving petitioner. Thus, the only issue before us is whether respondent exceeded his jurisdiction in entering the June 2 order. In the absence of a record showing a reason for the transfer order or that any of petitioner’s cases were transferred, we conclude that respondent did not act in excess of his jurisdiction in entering the June 2 order.

The record filed with this petition and the supplemental record do not demonstrate that respondent has acted or has proposed to act in excess of his jurisdiction. Likewise, the record does not show that there is a pressing necessity in this case or that the extraordinary remedy of a writ of prohibition is otherwise clearly warranted. Accordingly, the petition for writ of prohibition is denied.

Brown and Roaf, JJ., dissent.

ROBERT L. Brown, Justice,

dissenting. The essential issue in this case is whether the circuit judge could, first, disqualify from all cases in which the Boswell Law Firm represented a party and, then, reconsider his order and revoke it. The Boswell firm urges that the circuit judge lost jurisdiction once he disqualified. The Attorney General, on behalf of the circuit judge, posits (1) that the circuit judge issued a transfer order and not an order of disqualification, and (2) that, in any case, disqualification is a discretionary matter with the trial judge for which prohibition does not lie. The majority concludes that the record does not support the fact that the circuit judge disqualified himself. I disagree. It is no exaggeration to say that the disqualification issue permeates every aspect of this case.

On this point, the majority believes that the circuit judge’s affidavit and the petitioner’s affidavit cannot be considered by this court because they are not part of the record. Again, I disagree. Clearly, the circuit judge’s affidavit should be reviewed because that affidavit is part of the file in the Supreme Court Clerk’s office. Indeed, the respondent attached the affidavit to his original response to the petition for prohibition. On October 9, 1995, this court issued a per curiam order requesting “a full record and recitation of the material facts.” See Boswell v. Shirron, 322 Ark. 111, 906 S.W.2d 315 (1995). By happenstance, on that same date the Attorney General responded on behalf of the trial judge and attached to his filed response an affidavit of the respondent which read in part:

I was surprised at Ted Boswell’s suggestion that I had not appeared impartial to his law firm. Although the suggestion was unfair and totally without merit, my initial reaction was that if the Boswell Firm did not want me hearing cases in which they were involved, I would not do so. I signed the proposed order and it was filed on May 25, 1995. A copy of the order is attached as Exhibit “1” to the Petition for Writ of Prohibition.

The Boswell firm then attached to its revised petition its own affidavit which discusses the trial judge’s disqualification. It is also part of the file in this matter.

The respondent now asks in his revised brief that we not consider his affidavit. But this belated request should not be the basis for concluding that there is no proof of the circuit judge’s disqualification before this court. I would look to the circuit judge’s affidavit as evidence of an initial disqualification on his part. I would also consider the petitioner’s affidavit filed in this matter with the revised petition. We asked for a recitation of material facts in our per curiam order and that is what the affidavits provide.

But regardless of the affidavits, the precise terms used in the circuit judge’s first uniform order support the fact that he is disqualifying from all future Boswell firm cases. When a trial judge disqualifies from a case, it is common practice to transfer that case to another trial judge. See, e.g., Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978). That is precisely what was done in this case by the first uniform order. The only difference here is that the circuit judge disqualified from all future Boswell firm cases instead of one particular case.

Having said this, the petitioner’s claim for a writ of prohibition appears to have dubious validity because the Seventh Judicial District Circuit Court has jurisdiction over cases involving the Boswell firm in that judicial district regardless of whether the individual circuit judge does. Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992); Hobson v. Cummings, 259 Ark. 717, 536 S.W.2d 132 (1976). Yet, in the past when a writ of prohibition would not lie in a case, we have considered a writ of certiorari as an alternative remedy. See, e.g., Bates v. McNeil, 318 Ark. 764, 888 S.W.2d 642 (1994); Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992). Certiorari is not appropriate to control a judge’s discretion on recusal matters. Skokos v. Gray, 318 Ark. 571, 886 S.W.2d 618 (1994). But it is a suitable remedy to correct procedures erroneous on the face of the record and where no other adequate remedy exists. Foreman v. State, 317 Ark. 146, 875 S.W.2d 853 (1994); Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993).

I would treat this petition as one for certiorari and address the merits under our general superintending authority. Ark. Const, art. 7, § 4. The issue before us is not recusal but whether an individual circuit judge lost jurisdiction to preside over future cases where the Boswell Law Firm represented a party. An appeal does not represent an adequate remedy because cases involving the Boswell firm are undoubtedly being scheduled in the respondent’s court. I respectfully dissent.

ROAF, J., joins.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    R.J. “BOB” JONES EXCAVATING CONTRACTOR, INC. v. FIREMEN’S INSURANCE COMPANY of Newark, New Jersey
    95-1318
    920 S.W.2d 483
    Supreme Court of Arkansas
    Opinion delivered April 29, 1996
    [Petition for rehearing denied June 10, 1996.]

      Stanley D. Rauls, for appellant.

      Clark W. Mason and Ford, Yungblut, White & Salazar, PC., by: Michelle I. Rieger and Elmer A. Johnston, for appellee.

      Dudley, J., not participating.

   Donald L. Corbin, Justice.

Appellant, R.J. “Bob” Jones Excavating Contractor, Inc., (hereinafter “Jones”) appeals the order of the Pulaski County Circuit Court granting summary judgment to appellee, Firemen’s Insurance Company of Newark, New Jersey, (hereinafter “Firemen’s”) on appellant’s complaint for nonpayment under a statutory payment bond pursuant to Ark. Code Ann. § 23-79-208 (Repl. 1992) and for the tort of bad faith. This case requires statutory interpretation and presents a question about the law of torts; jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(3) and (16). Jones raises two points for reversal of the summary judgment. We find no merit and affirm.

PROCEDURAL HISTORY WITH BACKGROUND FACTS

Jones filed this suit against Firemen’s seeking to recover on a payment bond issued by Firemen’s as surety to Lawrence Brothers Incorporated, (hereinafter “Lawrence Brothers”) as principal and general contractor on Arkansas Highway Department Project No. 60447. Lawrence Brothers was to construct several bridges and appurtenances along Highways 46 and 222 in Grant County, Arkansas. Jones subcontracted with Lawrence Brothers to do the excavation work on the project.

A dispute arose between Lawrence Brothers and Jones over Jones’s completion of the subcontract and Lawrence Brothers declared Jones in default. Jones sued Lawrence Brothers for breach of contract and Lawrence Brothers counterclaimed for breach as well. A jury found both appellant and Lawrence Brothers in breach, but awarded damages only to appellant. Appellant won damages in the amount of $110,115.50 plus $46,891.97 in costs. This court dismissed Lawrence Brothers’s appeal of the jury verdict for lack of jurisdiction due to an untimely notice of appeal. Lawrence Bros., Inc. v. R.J. “Bob” Jones Excavating Contractor, Inc., 318 Ark. 328, 884 S.W.2d 620 (1994). Lawrence Brothers satisfied the judgment two days after we dismissed its appeal. Firemen’s was not a party to the suit between Lawrence Brothers and Jones.

Jones demanded payment under the bond from Firemen’s both prior to and after filing this suit against Lawrence Brothers and again after judgment was entered in that suit. Two days before > Lawrence Brothers satisfied the judgment, Jones amended its complaint against Firemen’s in this case to include a claim for the tort of bad faith.

The trial court granted Firemen’s motion for summary judgment in an order without explanation. At the hearing on the motion, however, the trial court stated that Firemen’s was entitled to judgment on both claims because Jones did not recover twenty percent of the amount demanded or sought in the suit as required by section 23-79-208(d) and because the tort of bad faith did not apply to a surety and had not been shown in this case.

STANDARD OF REVIEW

The standard for appellate review of a summary judgment is whether the evidentiary items presented by the moving party in support of the motion left a question of material fact unanswered and, if not, whether the moving party is entided to judgment as a matter of law. Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995). This court views all proof in the light most favorable to the party opposing the motion, resolving all doubts and inferences against the moving party. Id. However, when the movant makes a prima facie showing of entitlement to summary judgment, the respondent must meet that proof with proof showing a genuine issue as to a material fact. Id.

CLAIM FOR PAYMENT UNDER THE BOND

Jones’s first point for reversal relates to the claim for payment under the bond. Jones makes two arguments under this point. First, Jones contends the trial court erred in ruling that Lawrence Brothers’s payment of the underlying debt after Jones’s appeal was dismissed against Lawrence Brothers extinguished Jones’s cause of action under section 23-79-208. We need not address whether such a ruling was in error because there was no such ruling by the trial court in this case. The order entered in this case grants summary judgment to appellee without explanation. Although Firemen’s pleaded Lawrence Brothers’s payment as an affirmative defense in its answer, the record of the hearing on the motion for summary judgment does not reveal that the effect of the principal’s payment of the underlying debt on the surety’s liability was ever discussed or served as a basis for the trial court’s ruling. This court does not review matters that were not ruled upon below. Technical Servs. of Arkansas, Inc. v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995).

Second, Jones contends that Firemen’s admitted all essential elements to establish appellant’s recovery of the statutory penalty, interest, and attorneys’ fees under section 23-79-208, thus the trial court erred in granting summary judgment to Firemen’s. Specifically, Jones argues the trial court erred in ruling that recovery under section 23-79-208 was not allowed because Jones did not recover within twenty percent of the amount demanded as required by section 23-79-208(d). Subsection (d) was added to section 23-79-208 in 1991 and provides as follows:

23-79-208. Damages and attorney’s fees on loss claims.
(a) In all cases where loss occurs and the . . . surety . . . liable therefor shall fail to pay the losses within the time specified in the policy, after demand made therefor, the person, firm, corporation, or association shall be liable to pay the holder of the policy or his assigns, in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorneys’ fees for the prosecution and collection of the loss.
(d) Recovery of less than the amount demanded by the person entitled to recover under the policy shall not defeat the right to the twelve percent (12%) damages and attorneys’ fees provided for in this section if the amount recovered for the loss is within twenty percent (20%) of the amount demanded or which is sought in the suit. [Emphasis ours.]

Firemen’s contends that Jones was required to recover within twenty percent of the amount demanded of Firemen’s or the amount sought in the suit against Lawrence Brothers. This contention arises as a result of the peculiar facts of this case — specifically, that Jones did not join Firemen’s as a party defendant in the suit against Lawrence Brothers and that Jones made four demands for payment from Firemen’s, the amounts of which decreased chronologically as follows: $368,118.21, $311,808.51, $280,000.00, and $110,115.50. Firemen’s points out that the only demand that would satisfy the requirements of 23-79-208 (d) is the final one, which represents the amount of the judgment against Lawrence Brothers. Jones cites Armco Steel Corp. v. Ford Constr. Co., 237 Ark. 272, 372 S.W.2d 630 (1963), and argues that it is entitled to amend its demand. Firemen’s contends that Armco Steel does not stand for the proposition that a plaintiff can continue to amend its claim until it “gets it right.”

The previously mentioned peculiar facts are important and warrant some discussion of the law before resolving the merits of this question. It is well settled that “laborers and materialmen may, in cases involving public improvements, sue the surety on the bond of the contractor without making the contractor a party.” National Surety Corp. v. Ideal Lumber Co., Inc., 249 Ark. 545, 547, 460 S.W.2d 55, 56 (1970) (citing Holcomb v. American Surety Co., 184 Ark. 449, 42 S.W.2d 765 (1931)). Laborers and materialmen are allowed to sue on the bond directly because they cannot enforce liens against construction projects involving public works. Id. Contractors are proper but not necessary parties to suits on their bonds for public works construction projects. Id.

It is also well settled that the penalty provided for in section 23-79-208 and its predecessor statutes has been applied to sureties on construction bonds. See, e.g., Ray Ross Constr. Co., Inc. v. Raney, 266 Ark. 606, 587 S.W.2d 46 (1979) (citing Reid v. Miles Constr. Corp., 307 F.2d 20 (8th Cir. 1962), and Trinity Universal Ins. Co. v. Smithwick, 222 F.2d 16 (8th Cir.), cert. denied, 350 U.S. 837 (1955)); Vern Barnett Constr. Co., Inc. v. J.A. Hadley Constr. Co., Inc., 254 Ark. 866, 496 S.W.2d 446 (1973); General Elec. Supply Co. v. Downtown Church of Christ, 24 Ark. App. 1, 746 S.W.2d 386 (1988). With the exception of Smithwick, 222 F.2d 16, the above-cited cases were ones in which the principal and surety were both parties.

It is equally well settled that no demand other than the filing of suit is required under section 23-79-208 and its predecessor statutes. See, e.g., Farm Bureau Mut. Ins. Co. v. Shaw, 269 Ark. 757, 600 S.W.2d 432 (Ark. App. 1980) (citing Phoenix Ins. Co. v. Fleenor, 104 Ark. 119, 148 S.W. 650 (1912), and Metropolitan Life Ins. Co. v. Shane, 98 Ark. 132, 135 S.W. 836 (1911)); see also, Smithwick, 222 F.2d at 24 (citing Broadaway v. The Home Ins. Co., 203 Ark. 126, 155 S.W.2d 889 (1941), and National Fire Ins. Co. v. Kight, 185 Ark. 386, 47 S.W.2d 576 (1932)). Moreover, a new and lesser demand may be made by amendment after suit is filed, and the surety’s liability for the statutory penalty will be determined by whether it elects to contest the claim rather than offering to pay the reduced amount or asking for time in which to pay. Armco Steel, 237 Ark. 272, 372 S.W.2d 630 (citing Great S. Fire Ins. Co. v. Burns & Billington, 118 Ark. 22, 175 S.W. 1161 (1915), and Kight, 185 Ark. 386, 47 S.W.2d 576; Trinity Universal Ins. Co., 222 F.2d at 24 (citing Life & Casualty Co. v. Sanders, 173 Ark. 362, 292 S.W 657 (1927), Queen of Arkansas Ins. Co. v. Milham, 102 Ark. 675, 145 S.W 540 (1912), and Kight, 185 Ark. 386, 47 S.W.2d 576).

Finally, this court has stated that if a surety pays a claim when its principal is not liable, the surety is treated as a volunteer and cannot recover the payment from its principal. Johnson v. Safeco Ins. Co., 265 Ark. 9, 576 S.W.2d 220 (1979) (citing Fireman’s Fund Ins. Co. v. Clark, 253 Ark. 1025, 490 S.W.2d 447 (1973)). In Barnett Constr., 254 Ark. 866, 876-77, 496 S.W.2d 446, 452, this court applied Clark, 253 Ark. 1025, 490 S.W.2d 447, and a predecessor statute to section 23-79-208, and stated as follows:

Applying this statute to a surety so the surety must either pay a claim and align itself against its principal or run the risk of being penalized by a liability for a 12% penalty and attorney’s fees seems to be beyond the salutary purpose and intent of the statute.

In the present case, Firemen’s argues that its delay in paying Jones’s four demands was due to the legitimate dispute and litigation occurring between Jones and Firemen’s principal, Lawrence Brothers. That the dispute was legitimate is evidenced by the jury’s answers to interrogatories finding both the principal, Lawrence Brothers, and the subcontractor, Jones, in breach. Consistent with our statement in Barnett Constr. Co., we conclude on the facts here presented that there can be no liability of Firemen’s against Jones under section 23-79-208 because of the litigation between Jones and Lawrence Brothers. To impose liability on Firemen’s under section 23-79-208 would force Firemen’s into the untenable situation described in Barnett. Accordingly, we affirm the trial court’s ruling that Firemen’s is entitled to judgment as a matter of law on Jones’s claim pursuant to section 23-79-208, albeit for a different reason than expressed by the trial court. This court affirms the judgment of the trial court if the result reached is correct. Lawhon Farm Supply, Inc. v. Hayes, 316 Ark. 69, 870 S.W.2d 729 (1994).

TORT OF BAD FAITH

For his second point for reversal, Jones challenges the trial court’s ruling that the tort of bad faith does not apply to surety companies and that the tort of bad faith was not demonstrated in this case. The components of the tort of bad faith are affirmative misconduct by an insurer, without a good-faith defense, which is dishonest, malicious, or oppressive in an attempt to avoid liability under a policy. Aetna Casualty and Surety Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 463 (1983). The tort of bad faith applies to both first and third-party claims. Id. The third-party tort of bad faith is the negligent failure of an insurer to settle a third-party claim within policy limits. Employers Equitable Life Ins. Co. v. Williams, 282 Ark. 29, 665 S.W.2d 873 (1984).

It is questionable whether the tort of bad faith applies to these facts — where one who has subcontracted with a principal asserts a cause of action for bad faith against the principal’s surety or bonding company. We need not decide this issue, however, because the tort has not been proved in this case. See Williams v. Joyner- Cranford-Burke Constr. Co., 285 Ark. 134, 685 S.W.2d 503 (1985).

Jones argues there are material issues of disputed fact relating to the claim for bad faith and summary judgment was thus improper. As the moving party, Firemen’s bore the burden of proving it was entitled to summary judgment. In this case, Firemen’s met that burden by demonstrating it had a good-faith defense to the tort of bad faith. As previously discussed, if a surety pays a claim when the principal is not liable, the surety is treated as a volunteer and cannot recover the payment from the principal. Johnson, 265 Ark. 9, 576 S.W.2d 220. There was a legitimate question of Lawrence Brothers’s liability, as is evidenced by the jury answers to interrogatories finding both Lawrence Brothers and Jones in breach. Thus, Firemen’s had a good-faith defense and has proved it is entided to judgment as a matter of law. See Johnson, 265 Ark. 9, 576 S.W.2d 220. Jones offered no proof to defeat Firemen’s good-faith defense and has therefore not met its burden of meeting Firemen’s proof with proof that there is a genuine issue for trial.

The order granting summary judgment is affirmed.


author: ROBERT L. Brown, Justice.

text:
    Georgia Louise WEAVER v. STATE of Arkansas
    CR 95-1205
    920 S.W.2d 491
    Supreme Court of Arkansas
    Opinion delivered April 29, 1996

      William R. Simpson, Jr., Public Defender and Llewellyn J. Marczuk Deputy Public Defender, by: C. Joseph Cordi, Jr, Deputy Public Defender.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   ROBERT L. Brown, Justice.

Appellant Georgia Louise Weaver appeals her capital murder conviction for the murder of her sister, Jeannie Allen, and her first-degree battery conviction regarding her great-niece, Theresa Allen Tessman. Weaver raises four points on appeal concerning sufficiency of the evidence and trial error. We hold that the evidence supporting conviction was substantial and that there was no reversible error. Accordingly, we affirm.

The victim in this case — Jennie Lee Allen, who went by Jeannie Allen — was age 66 at the time of her death. On December 19, 1992, she was admitted to Baptist Medical Center in Little Rock with fever, nausea, vomiting, diarrhea, near unconsciousness, weakness, and blurred vision. Her symptoms suggested a gastrointestinal illness. Neurological problems developed, and she was placed on a ventilator. Heavy metal screening and urine sampling revealed high levels of arsenic poisoning — 1,237 micrograms of arsenic as compared to an acceptable range of less than 200 micrograms. Treatment for arsenic poisoning was not implemented in time, and she died of cardiac arrest on January 17, 1993.

Following Jeannie Allen’s demise, members of her family were tested for arsenic poisoning. Her granddaughter, Theresa Allen, who was age 24, had an elevated microgram level of arsenic of 1,024, which was about five times above the acceptable level. It was also discovered that Theresa Allen was seven weeks pregnant. Because of the risk of fetal damage caused by arsenic poisoning, she voluntarily terminated her pregnancy. She was hospitalized for arsenic treatment for four days — from January 30, 1993, to February 2, 1993.

The death of Jeannie Allen and the arsenic poisoning of Theresa Allen led to charges of capital murder and first-degree battery against Weaver. The State’s theory of the case was that Weaver, motivated by greed and revenge, poisoned her sister by placing arsenic in her food, drink, and medication. Following a jury trial and verdict of guilty, Weaver was sentenced to life without parole for murder and to thirty years imprisonment for first-degree battery.

I Sufficiency of the Evidence

For her first issue, Weaver contends that the trial court erred in refusing to direct a verdict in her favor based on insufficient evidence against her. She urges that this was a case of circumstantial evidence and that another reasonable hypothesis existed for who murdered Jeannie Allen. The hypothesis she posits is that Jimmie Allen, Jeannie Allen’s husband, murdered his wife because (1) he had the opportunity to do so; (2) he tested negative for arsenic poisoning himself; and (3) he had threatened to kill Weaver and complained about her efforts to move into his house. We do not agree that Weaver’s hypothesis is reasonable.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). In determining the sufficiency of the evidence, we review the evidence in the light most favorable to the State and sustain the judgment of conviction if there is substantial evidence to support it. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. Only the evidence supporting the conviction need be considered. Id. In order for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Walker v. State, 324 Ark. 106, 918 S.W.2d 172 (1996); Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996). Such a determination is a question of fact for the fact finder to determine. Huggins v. State, 322 Ark. 70, 907 S.W.2d 697 (1995); Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993).

A person is guilty of capital murder if “[wjith the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person.” Ark. Code Ann. § 5-10-101 (a)(4) (Repl. 1993 8c Supp. 1995). We have held that premeditation and deliberation may be inferred from circumstantial evidence. Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989). We have further emphasized that intent and state of mind are rarely capable of proof by direct evidence and must usually be inferred from the circumstances of the case. Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994).

Contrary to Weaver’s assertions, there was testimony to show that it was not reasonable to hypothecate that Jimmie Allen poisoned his wife and granddaughter. First, there was no testimony that he ever prepared meals for them. Secondly, he did not eat the same food as his wife and granddaughter which made his negative testing for arsenic not surprising. His children testified that his diet was restricted to baloney sandwiches and sandwiches from various fast food restaurants. They also testified that he drank only tap water or canned beverages. Witnesses further stated that he had limited ambulatory ability and a deteriorating mental condition. And he was never connected at trial in any way to arsenic. Finally, Weaver, the subject of Jimmie Allen’s malevolence, was not poisoned — his wife was. In sum, Weaver’s theory of the case was clearly a matter for the jury to weigh and resolve, and the jury rejected Weaver’s hypothesis, no doubt because it was implausible.

The circumstantial evidence supporting the jury verdict follows. Gary Lawrence, a chemist with the State Crime Laboratory, testified that the medication, Vick’s Nyquil, taken from the decedent’s home and a fruit punch taken from her freezer both tested positive for arsenic. Other testimony established a motive for murder. According to Jerry Allen, the son of the deceased, the sisters, Jeannie Allen and Georgia Weaver, became estranged in 1990, due to a dispute over funds of the guardianship estate of their mother, Birdie Fewell. Jeanette “Rusty” Rohlman, a neighbor of Jeannie and Jimmie Allen, testified that she had been close friends with the Allens since 1981. She was also knowledgeable about the dispute between the sisters over funds of the Birdie Fewell guardianship. Rohlman stated that Weaver wanted to divide the proceeds between them while Jeannie Allen wanted to put the money in an account for their mother. The dispute blossomed into a lawsuit filed by Allen against Weaver over missing funds, and Weaver afterwards vowed revenge. The estrangement ended in May or June of 1992, according to Jerry Allen, when Jeannie Allen assisted Weaver in resolving some “trouble with the law.” Jerry Allen also testified that after the apparent reconciliation, it seemed as if Weaver was trying to take over every aspect of Allen’s life and business. Rohlman testified that the dispute over the guardianship funds was still in litigation as late as November or December of 1992.

Rohlman added that she observed Weaver and Jeannie Allen spending nearly every day together during the summer of 1992. She testified that she had a key to Allen’s home but that the locks were changed in the fall of 1992. In October of 1992, Allen brought her the keys to her freezer, where her cash was kept, and to her top dresser drawer, where her jewelry was stored, for Rohlman to keep. Rohlman further told the jury that Jeannie Allen received a J.C. Penney’s bill on an account which she no longer had at the store and that an expensive ring had been charged to that account. On December 16, 1992, she accompanied Allen to J.C. Penney’s to resolve the charge on the credit card. When they returned, Weaver was not there but arrived shortly afterwards. Rohlman testified:

Georgia came into the house, and she said, “I have all my stuff in the car. What should I do with it? Where can I put it?” Georgia said — Jean told Georgia, “I told you not to bring anything over here. You are not moving in. You’re not putting it anywhere. Leave it in the car. You have a place to live.”

About thirty minutes later, Allen went to the bathroom and became violendy ill. According to Rohlman, she blamed the illness on her “nerves” from Weaver “driving [her] cra2y.” Rohlman added that Weaver did not seem concerned about Jeannie Allen’s illness.

Barbara Conneely, the daughter of Jimmie and Jeannie Allen, who lived in Chicago in 1992, and Nora Swain, another neighbor, confirmed that Weaver was always at Allen’s home during the summer and fall of 1992 and that she was reluctant to let them speak to Allen on the telephone. Viola Lenard, another neighbor, testified that Weaver was always around the victim and that it affected her relationship with others. Lenard further stated that Weaver had “seen to” Allen’s turning everything over to her in her will.

Marian White, the owner of the Cimarron Inn in Litde Rock, testified that she found a botde of rat poison at her inn where Weaver had worked as a desk clerk, beginning on December 11, 1992, and terminating on January 10, 1993. White testified that Weaver showed her where she hid her sister’s purse in a linen storage room at the inn because she did not want the police to find it. Ultimately, the purse disappeared. On March 2, 1993, White found a botde of rat poison hidden between a blanket and bedspread in the storage area adjacent to the linen storage room. According to White, that type of rat poison was never used at the inn. Danny Naegle, the manager of Farmer’s Association, testified that the price sticker on the botde of liquid rat poison showed that it was sold at his store. The botde was placed on his store shelf in October of 1992, and, Naegle stated, it was unlikely that the bottle was purchased after December of 1992 due to the manner in which the item was stocked, coupled with the number of sales during those months. Gary Lawrence of the State Crime Laboratory confirmed the presence of arsenic in a sample taken from the rat poison.

Officer Wilbur Page of the Litde Rock Police Department introduced a power of attorney purportedly signed by “Jennie Allen” and a Discover card under the name of James S. Allen. These items were recovered from Weaver. Linda Taylor, a handwriting expert, stated that in her opinion Weaver forged Allen’s signature on the power of attorney dated November 16, 1992. Jim Kirkland, a bank branch manager who notarized the power of attorney, testified that he notarizes documents only after verifying the signature on photo identification.

Linda Smith, who at the time worked in fine jewelry at J.C. Penney’s, testified that she sold a diamond ring to Weaver on November 19, 1992, at a cost of about $3,000. The ring was purchased on a temporary J.C. Penney’s charge card issued in the name of “Jennie Allen,” her legal name. Suzanne Stephens, who also works for J.C. Penney’s, testified that Weaver approached her about getting a temporary credit card, and she identified herself as Jennie Allen. According to Stephens, Weaver presented an Arkansas driver’s license with Allen’s name and Weaver’s picture. She further testified that Weaver presented her with documents giving Allen guardianship over James Allen’s account and properties. Based on this information, Stephens reactivated Allen’s account. Gary Aldrich, a retired pawn broker, testified that on November 19, 1992, Weaver pawned a diamond ring for $400.

Brenda Rockins, a postal employee, testified that Weaver rented a post office box under the name of Jennie L. Allen. The application was dated November 30, 1992. Weaver also filed a change of address in her name to the same post office box that was registered to Allen. Both change-of-address documents were dated December 21, 1992.

Jamie Teague, the branch manager for First Commercial Bank, testified that Weaver presented her with a power of attorney executed by Jeannie Allen in favor of Weaver for purposes of cashing a check in the amount of $1,392.89. That withdrawal closed out the account, which belonged to Birdie Fewell, the sisters’ mother. Weaver used the power of attorney to gain access to Allen’s safety deposit box, but the box was empty.

Theresa Allen told the jury that she ate lunch every day with her grandmother, Jeannie Allen, because she worked nearby. Theresa testified that “ [i] t was pretty plain to see that [Weaver] was taking over the house litde by little.” Theresa testified that toward the end of the summer, Weaver was fixing lunch for her every day. Theresa Allen told the jury about how upset Jeannie Allen was when she learned that she had been charged $3,000 on the J.C. Penney’s account. Theresa also testified that Weaver would pick up the Allens’ mail and added that she quit seeing Weaver at the Allen house after the episode concerning the J.C. Penney’s bill.

Theresa further testified that she started feeling poorly approximately two weeks, before her grandmother’s death and that she tested positive for arsenic poisoning. She was admitted to the Baptist Medical Center for four days and then received seven more days of treatment at home. Prior to the arsenic testing, Theresa Allen blamed her illness on the fact that she was pregnant. She then had an abortion because the arsenic poisoning had penetrated her placenta, and she concluded that the baby would not have been normal. She stated that she once borrowed some Vick’s Nyquil from her grandmother, used it, and later returned the bottle.

Finally, Theresa Allen stated that Weaver once asked her where she could obtain a fake driver’s license for her son and his girlfriend, who needed the fake ID’s so that they could go out. Theresa told Weaver how she obtained her fake ID. Theresa added that she drank for months from the beverage container which was contaminated with arsenic.

To summarize the testimony, Weaver and her sister fell out over money, and Weaver vowed revenge. During the summer and fall of 1992, Weaver appeared to be taking over Jeannie Allen’s affairs and isolating her. She forged her sister’s name on a power of attorney, apparendy by obtaining a fake driver’s license which bore her sister’s name. She later used these items to empty the Birdie Fewell bank account (about $1,400) and to view Jeannie Allen’s safety deposit box. She also began a scheme of impersonation. On November 19, 1992, Weaver used her false identification to reopen Allen’s account at J.C. Penney’s and purchase a $3,000 diamond ring, which she later pawned for $400. Jeannie Allen received the J.C. Penney’s bill in December of 1992 and began taking steps to find out what had happened. Shordy after this occurred, Allen became violently ill.

Both the Vick’s Nyquil botde and the gallon drink container found in the Allen home tested positive for arsenic. On March 2, 1993, liquid rat poison containing arsenic was found hidden in the storage room at Weaver’s former place of employment next to a linen storage area where she had hidden her sister’s purse because she did not want the police to find it. Theresa Allen was also poisoned, and she testified that Weaver prepared meals for her on a daily basis.

This evidence was sufficient to compel a reasonable mind to conclude that Weaver poisoned her sister and grand-niece. The testimony showed that Weaver was motivated by revenge and greed against her sister. There was ample evidence that she had developed a full-blown scheme to take over her sister’s property and affairs. She also had the opportunity and the means to commit murder because she had access to food, drink, and medication in the Allen household. And finally there was the link to the rat poison at her place of employment. The trial court did not err in denying the motion for directed verdict.

II. First-Degree Battery

Weaver next contends that there was insufficient evidence supporting her first-degree battery conviction. Our analysis of this point turns on the definition of “serious physical injury.” A person commits battery in the first degree if “[h]e causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life.” Ark. Code Ann. § 5-13-201 (a)(3) (Repl. 1993 & Supp. 1995). The code defines “serious physical injury” as “physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.” Ark. Code Ann. § 5-1-102 (19) (Repl. 1993 & Supp. 1995). We look to determine whether there is substantial evidence from which the jury might infer serious physical injury. See Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991); Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990).

In viewing the circumstances surrounding the poisoning and its impact on Theresa Allen, we conclude that there is substantial evidence to support a verdict that her injury was “serious.” It is apparent to us that there was a substantial risk of death. This inference is supported by the convincing fact that the elevated level of arsenic in her system approached the lethal level found in Jeannie Allen. She was also hospitalized for several days to reduce the level of toxicity. Again, the trial court did not err in denying the directed verdict motion on this charge.

III. Mistrial

Weaver moved for a mistrial during Jerry Allen’s testimony. He stated in answer to the prosecutor’s question that in May or June of 1992, Weaver “was in some type of trouble with the law, and Qeannie Allen] intended to help her.” Counsel for Weaver objected to the testimony and moved for a mistrial. The State argued that the impact was minimal and that an admonition would suffice to cure any damage. The court denied the motion to declare a mistrial, and Weaver declined the offer of an admonition. Weaver argues that justice could not have been served by continuing the trial and that the motion should have been granted because the jury likely presumed her to be a career criminal.

A mistrial is a drastic remedy and is proper only when the error is beyond repair and cannot be corrected by any curative relief. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995). The granting of a mistrial is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal absent a showing of abuse. Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995). It is not an abuse of discretion if improper comment did not influence the verdict. Id. When there is doubt as to whether the trial court abused its discretion, a failure to request an admonition will negate a mistrial motion. Boyd v. State, 318 Ark. 799, 889 S.W.2d 20 (1994).

Weaver relies on Allard v. State, 283 Ark. 317, 675 S.W.2d 829 (1984), as authority for when a declaration of a mistrial is warranted. That case, however, is factually distinguishable. In Allard, additional counts of theft by receiving contained in the original indictment were read to the jury even though the defendant was to be tried only for aggravated robbery. Under such circumstances, the prejudice to the defendant was real and palpable.

Here, from the context of the colloquy, the testimony was not deliberately solicited by the prosecutor. Prior to the testimony, the prosecutor told the trial court and defense counsel that he had instructed Jerry Allen not to state what Weaver’s problems with the law were. The prosecutor then asked what Jeannie Allen’s intended course of conduct was, and Jerry Allen made the reference to “trouble with the law.” In addition, we observe that there was no specific reference to a particular crime. As the trial court remarked, the “trouble with the law” referred to by Jerry Allen could have been traffic violations and relatively minor indeed. Bolstering this conclusion is the fact that the jury could have inferred that any “trouble with the law” was not serious in 1992, because Weaver did not go to jail but spent nearly every day with Jeannie Allen from that point forward until her death. We have held in the past that an admonition to the jury could cure a witness’s reference to the defendant’s “previous record” or third-degree battery conviction. See Reel v. State, 318 Ark. 565, 886 S.W.2d 615 (1994); Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991).

Because the possibility of prejudice was speculative, an admonition could have cured any potential error. An admonition was offered, and counsel for Weaver declined. The trial court did not abuse its discretion in denying the motion for a mistrial. See Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995).

IV Admissibility of Rat Poison

Weaver moved to suppress the botde of rat poison found hidden in a storage area at the Cimarron Inn seven weeks after the crime on the basis that it was irrelevant. She now appeals the trial court’s ruling on her motion. Evidence is relevant, under our rule and caselaw, if it has any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable. Ark. R. Evid. 401; Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). The trial court has wide discretion on rulings concerning the admissibility of evidence, and that decision will not be reversed absent an abuse of discretion. Monk v. State, 320 Ark. 189, 895 S.W.2d 904 (1995); Grigsby v. State, 260 Ark. 499, 542 S.W.2d 275 (1976).

The evidence, to reiterate, was that rat poison was found at the Cimarron Inn, Weaver’s former place of employment, close to an area where she had once hidden her sister’s purse. Weaver worked at the inn from December 11, 1992, to January 10, 1993. Allen was hospitalized on December 19, 1992. The discovered rat poison contained arsenic. The poison was not found where other chemicals were stored by the inn and was unlike other poison used by the inn to control rats and mice. It was also shown that the poison was purchased near the time when Jeannie Allen began exhibiting symptoms of arsenic poisoning. The evidence, in toto, supports an inference that Weaver purchased the poison, used it to murder Allen, and hid it at her place of employment. The trial court did not abuse its discretion in admitting the bottle of rat poison into evidence for the jury to weigh. See Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983).

The record in this case has been reviewed for other reversible error in accordance with Supreme Court Rule 4-3 (h), and none has been found.

Affirmed.


author: Andree Layton Roaf, Justice. BRADLEY D. JESSON, Chief Justice,

text:
    James PLEDGER, Director of the Arkansas Department of Finance and Administration, and Timothy J. Leathers, Commissioner of Revenues v. Frank HALVORSON, et al.
    95-1321
    921 S.W.2d 576
    Supreme Court of Arkansas
    Opinion delivered April 29, 1996

      Kenneth R. Williams, for appellants.

      Poynter & Gearhart, P.A., by: Terry M. Poynter, for appellees.
   Andree Layton Roaf, Justice.

This is an appeal by the Director of the Department of Finance and Administration and the Commissioner of Revenues from a chancellor’s holding that the appellees’ mobile homes, which were attached to rented lots in a mobile-home park, were fixtures and not tangible personal property subj'ect to the gross-receipts (sales) tax. The chancellor ordered a refund to the appellees of the gross-receipts taxes paid upon purchase of their mobile homes and awarded attorney’s fees to the appellees. We agree that the chancellor erred and reverse and dismiss.

Each of the appellees (“taxpayers”) purchased a manufactured or mobile home located in the Rolling Meadows Mobile Home Park in Mountain Home, Arkansas, between October 1991 and May 1994; the Department of Finance and Administration (“DFA”) collected sales tax from the taxpayers on the purchases. The taxpayers filed claims for refund pursuant to Ark. Code Ann. § 26-18-507 (Repl. 1992). The claims were denied, and the taxpayers filed the instant action in Baxter County Chancery Court.

The taxpayers contended that (1) their purchases were exempt from the gross-receipts tax as isolated purchases pursuant to Ark. Code Ann. § 26-52-301 (Repl. 1992), (2) the gross receipts tax was an illegal exaction and violated the Fourteenth Amendment to the United States Constitution, (3) the statute imposing the tax was administered by DFA in an unconstitutionally discriminatory manner, and (4) the mobile homes or manufactured homes were fixtures rather than personalty subject to sales tax. In addition to seeking a refund, the taxpayers requested attorney’s fees and costs. DFA admitted that the taxes had been paid and that the claims for refund had been made and denied; however, DFA denied that the taxpayers were entitled to a refund or attorney’s fees.

The chancellor made the following findings of fact. All of the taxpayers were commonly situated as purchasers of homes affixed to lands belonging to the Weymeyer family trust in the Rolling Meadows Mobile Home Park. They pay a monthly rental on the grounds around and beneath their mobile homes. Each of the homes had lost its character as transportable because there were no tongues, axles, or wheels on any of the homes, and the homes had all been placed on concrete or concrete-block foundations with underground utilities and extensive structural modifications including roofs, patios, enclosed porches, and carports. All of the homes were purchased from former owners at the same location and had been utilized as permanent dwellings through as many as four different owners. The proof established the near impossibility of removal of the homes absent extensive and expensive efforts.

However, the chancellor also found that ownership of the homes carried with it the right to remove the homes at any time and that the owners have only a leasehold interest in the real property on which the homes are located. Finally, the chancellor concluded that neither the current owners nor the previous owners had manifested any desire to move the mobile homes from the lots; in fact, they had more firmly affixed the dwellings by making improvements.

DFA argues that the chancellor erred in holding that mobile homes attached to rented lots in a mobile-home park are “fixtures” and not subject to sales tax as tangible personal property. Arkansas Code Annotated § 26-52-301 (Supp. 1995) provides in part that there is levied an excise tax of three percent upon the gross proceeds or gross receipts derived from all sales to any person of tangible personal property. In the instant case, the chancellor determined that the isolated-sale exemption was not applicable. He concluded that the gross-receipts tax could not be levied because the mobile homes are not tangible personal property. See Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994); Leathers v. A & B Dirt Movers, Inc., 311 Ark. 320, 844 S.W.2d 314 (1992). Consequendy, DFA had the burden of proving the propriety of the tax, and all doubts and ambiguities had to be resolved in favor of the taxpayers. Id.

Although chancery cases are reviewed de novo, this Court will not disturb the chancellor’s findings of fact unless they are clearly erroneous. Boeckmann v. Mitchell, 322 Ark. 198, 909 S.W.2d 308 (1995); Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994). On appeal, DFA does not challenge the chancellor’s factual findings; it contends the mobile homes are personal property rather than fixtures.

This Court has oudined the basic rules for determining whether an article remains personal property or becomes a fixture. McIlroy Bank & Trust v. Federal Land Bank, 266 Ark. 481, 585 S.W.2d 947 (1979); Corning Bank v. Bank of Rector, 265 Ark. 68, 576 S.W.2d 949 (1979). The test is: (1) whether the items are annexed to the realty, (2) whether the items are appropriate and adapted to the use or purpose of that part of the realty to which the items are connected, and (3) whether the party making the annexation intended to make it permanent. Id.; see also 5 Richard R. Powell, The Law of Real Property ¶ 652[1] (1987).

As to the third element, we have stated that the intention is inferred from the nature of the chattel, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose for which the annexation has been made. Corning Bank, supra. This Court has stated that the intention of the person making the annexation is a consideration of primary importance. Farmers Mutual Ins. Co. v. Denniston, 237 Ark. 768, 376 S.W.2d 252 (1964). However, contrary to the assertion of the dissent, “courts apply an objective test and arrive at the annexer’s intention by looking to his outward acts rather than to the inner workings of his mind.” Id. (Emphasis supplied.)

DFA concedes that the first element of the test is established because it is undisputed that the mobile homes are affixed to the real estate; the wheels and tow tongues have been removed, and the mobile homes have been placed on permanent foundations or pillars. However, DFA contends that neither the second nor the third element is satisfied; it principally contends that the intent requirement of the test has not been met.

In 5 Richard R. Powell, The Law of Real Property ¶ 652[1] (1987), the discussion of tests for a fixture provides:

One of the primary factors giving rise to a finding that the affixed item is or is not a fixture has to do with the relationship of the party to the real estate. If the item being affixed is owned by the same person who owns the land, then the act of attaching the item to the realty is generally considered a sufficient basis for an objective observer to regard the item as having become part of the real estate. If, on the other hand, the owner of the item affixes it as a tenant to the property owned by the landlord, the opposite presumption generally arises. The likely intent of the tenant negates the fixture characterization because the tenant has probably installed the item for his own enjoyment, convenience or use and will generally be regarded as intending to preserve rights in the item as personalty.

In Farmers Mutual Ins. Co. v. Denniston, 237 Ark. 768, 376 S.W.2d 252 (1964), this Court concluded that a compelling reason for concluding that a house trader did not lose its identity as personal property was the fact that it was placed on land belonging to another party rather than the owner of the trailer. The court commented that it was apparent that the owner of the trailer did not contemplate leaving it on the property as he did not even have a lease to the property.

In this instance the evidence does not support the finding that the annexation of the mobile homes is intended to be permanent. Although the chancellor concluded that none of the taxpayers had manifested any intent to move their homes, the taxpayers admitted that they claim the right to move their mobile homes at the termination of their rental agreements. The mobile home park owner further testified that she claims no ownership in the homes because of their annexation to her property. It is clear that a “disinterested observer would doubt that a tenant would want to give up ownership of an item he has attached on the landlord’s property.” 5 Richard R. Powell, The Law of Real Property ¶ 652[4] (1987).

DFA also submits that the second element was not satisfied because the mobile homes could easily be adapted for use on any other realty. DFA presents no further argument beyond this bare assertion, and no authority for this proposition; we need not address such an argument, as it is not apparent without further research that it is well founded. See Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996).

The dissent contends that the characterization of mobile homes or manufactured housing as “tangible personal property” is at odds with other Arkansas tax laws. However, the “other” tax laws cited by the dissent do not involve the gross-receipts (sales) tax. The Arkansas Gross Receipts Act provides that “[t]he tax imposed by this act shall be in addition to any or all taxes except as otherwise provided in this act.” Ark. Code Ann. § 26-52-104 (Repl. 1992) (emphasis added). Further, Ark. Code Ann. § 26-52-504 (Supp. 1995), Sale of house trailers or mobile homes, makes it clear that the General Assembly intended for certain mobile homes to be subject to sales tax.

For its second point, DFA contends that there is no statutory authority for an award of attorney’s fees in this case. The taxpayers concede this issue. The general rule relating to attorney’s fees is that the recovery of attorney’s fees is not allowed except when expressly provided for by statute. Arkansas Dep’t of Human Servs. v. Kistler, 320 Ark. 501, 898 S.W.2d 32 (1995); Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990).

Reversed and dismissed.

JESSON, C.J., dissents.

BRADLEY D. JESSON, Chief Justice,

dissenting. I dissent for two reasons. First, the majority has not given due deference to the chancellor’s findings of fact. Second, the State of Arkansas should not be allowed to treat mobile homes or manufactured homes as real property for some tax purposes and personal property for other tax purposes.

The chancellor’s findings of fact focused on the third prong of the test set out in the McIlroy Bank & Trust and Corning Bank cases, i.e., whether the party annexing property to land intended to make it permanent. The overwhelming majority of evidence points to the conclusion that the appellees had every intention of keeping their homes permanently affixed to the land in the Rolling Meadows Mobile Home Park. As the chancellor noted in his order, the appellees “purchased their homes already affixed and have maintained them in place as purchased.” He also noted that “not one of these parties has testified to any intent to move their home.” The majority seems to equate the appellees’ right to move their homes with the intention to move their homes. If that is the case, no mobile home or manufactured housing on leased land will ever be characterized as anything other than personal property, despite the owner’s actual intention. The majority also ignores the evidence in support of the chancellor’s finding that:

each of the homes in this litigation have long lost their character as transportable as there are no tow tongues, axles or wheels on any of the homes, and they have all been placed in concrete or concrete block foundations with underground utilities and extensive structural modifications including roofs, patios, enclosed porches, carports and room additions, which are firmly affixed to the land by concrete, post and pillar, or similarly anchored.

The question of intent is one which is particularly in the realm of the fact-finder to resolve. Findings of fact should be affirmed unless clearly erroneous. ARCP 52(a).

My second problem with the majority holding is that the characterization of mobile homes or manufactured housing as “tangible personal property” is at odds with other Arkansas tax laws. For the purpose of ad valorem taxes, such homes permanently affixed on land which is owned or leased by the homeowner are deemed real property. Ark. Code Ann. § 26-3-203(a)(l) (Repl. 1992). At the hearing before the chancellor, Baxter County Appraiser Lee Farrier testified that the appellees homes were carried on the real-estate property cards and assessed as improvements on the real estate. The appellees now end up with the worst of both worlds. Their perma-nendy affixed mobile homes are subject to real-property taxes as improvements to real estate and also subject to sales tax as personal property. It should not be both.

The discrepancy also shows up in the real-estate-transfer tax. The tax is imposed on deeds, instruments, or writings by which lands tenements or other realty is sold. Ark. Code Ann. § 26-60-105(a) (Supp. 1995). One of the homeowners, Mildred Jett, testified at trial that she paid such a tax on the purchase of her home.

Finally, the majority opinion is at odds with the general definitions contained in Ark. Code Ann. § 26-1-101 (Repl. 1992). That code section defines real property as:

not only the land itself, whether laid out in town lots or otherwise, with all things therein contained, but also all buildings, structures, improvements and other fixtures of whatever kind thereon and all rights and privileges belonging or in anywise appertaining thereto.
Personal property is defined as:
Every tangible thing being the subject of ownership, whether animate or inanimate, other than money, and not forming a part of any parcel of real property as defined.

I believe consistency requires a holding that, under the facts of this case, the appellees’ homes are not personal property but are realty, in the sense that they are fixtures or improvements. I respectfully dissent from the majority opinion.


author: ANDREE LAYTON Roaf, Justice. Tom GLAZE, Justice,

text:
    Lawrence STANLEY v. STATE of Arkansas
    CR 95-1181
    920 S.W.2d 835
    Supreme Court of Arkansas
    Opinion delivered April 29, 1996

      John W. Cone, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   ANDREE LAYTON Roaf, Justice.

Lawrence Stanley was convicted of escape from the Department of Correction, and aggravated robbery. He was sentenced to ten years and forty-five years respectively, to be served concurrently. On appeal, he argues that the trial court erred 1) in ordering him to appear in the courtroom wearing handcuffs, and 2) in denying his motion for mistrial after the prosecutor, during opening statements, commented on other possible offenses committed by Stanley in another county. We affirm.

Stanley, along with two other inmates, escaped from a construction crew that was building a security tower at the Pine Bluff diagnostic unit by running into a wooded area. They first attempted to steal a car from a nearby residence, but fled when an elderly woman pulled a gun on them. The three subsequently entered another house after they observed a woman leave there in a pickup truck; inside the home they encountered the owner, Madison Jackson, talking on the telephone. Mr. Jackson testified that one of the inmates held a knife to his throat and that Stanley removed a rifle from the wall. The three inmates took Mr. Jackson’s wallet, two rifles and his car keys, and fled in Jackson’s car; Stanley drove the car. The three were later apprehended in Ouachita County.

Stanley filed a motion to sever, and was tried separately from the other two inmates. At his trial, Stanley was dressed in white prison garb and was shackled with arm and hand restraints. The trial court denied Stanley’s request to have leg restraints substituted for the arm and hand restraints.

Stanley first argues that the trial court erred in ordering him to appear in the courtroom wearing handcufrs. Stanley’s counsel objected to Stanley wearing handcufrs in front of the jury, and a hearing was convened in chambers concerning this matter. After the hearing, the trial court pronounced the following reasons for requiring Stanley to wear handcufrs:

[S]ince this is an escape case and since part of the State’s proof would be the fact that Mr. Stanley was an inmate in the Department of Correction, certainly his prison garb would not be prejudicial. That would be an element of proof anyway. And, also, since it was an escape case, Sergeant Coleman indicated that he — being the correctional officer in charge of security of delivering Mr. Stanley back — he felt like being in restraints were appropriate. Mr. Stanley, of course, didn’t have any real problem with it. He would have preferred, as I recall he stated to the Court, that he be in leg irons as opposed to arm and hand restraints. Officer Goldman indicated that the particular restraints that they had him fitted with this morning were inconspicuous and not readily discernable to the casual observer. So, for those reasons, the Court was not persuaded that Mr. Stanley would be prejudiced in any way by that procedure.

During voir dire, Stanley’s counsel asked potential jurors whether they would treat Stanley differently than any other citizen of Jefferson County because he was an inmate and wearing a white prison uniform and handcuffs. The abstract and record do not indicate any response from the jurors to this inquiry.

The trial court has discretion to use physical restraints on a defendant for security purposes and to maintain order in the courtroom. Terry v. State, 303 Ark. 270, 796 S.W.2d 332 (1990). At the time of Stanley’s trial, Ark. R. Crim. P. 33.1 provided:

Defendants and witnesses shall not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, he shall enter into record of the case the reasons therefor. Whenever physical restraint of a defendant or witness occurs in the presence of jurors trying the case, the judge shall upon request of the defendant or his attorney instruct the jury that such restraint is not to be considered in assessing the proof and determining guilt.

(Effective July 10, 1995, until January 1, 1996, this rule was numbered A.R.Cr.P. Rule 33.2; after January 1, 1996, the rule shall be numbered 33.4.)

It is not prejudicial, per se, when the defendant is brought into a courtroom handcuffed. Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992). The United States Supreme Court has said that where it is essential to maintain dignity, order, and decorum in the courtroom, restraints may be used. Illinois v. Allen, 397 U.S. 337 (1970). This court has upheld the use of restraints where the defendant has been charged with violent offenses, engaged in disruptive behavior, or attempted escape. See Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985) (rape, aggravated robbery, and kidnapping); Terry, supra (aggravated robbery); Johnson v. State, 261 Ark. 183, 546 S.W.2d 719 (1977) (escape). Stanley clearly falls into the above categories because he was charged with escape in the second degree, and also with aggravated robbery. Moreover, the trial court complied with then A.R.Cr.P. Rule 33.1 by stating on the record its reasons requiring Stanley to wear handcuff.

In Johnson, this court stated that the fact that Johnson was an inmate charged with escaping from the penitentiary would become known to the jury during trial; since there was nothing in the record to indicate what impression this might have made on the jurors, this court determined that it could not presume prejudice. Johnson, supra.

In this instance, Stanley has not presented any proof of prejudice, and the abstract and record of the voir dire do not substantiate Stanley’s allegations that prejudice resulted from the use of handcuff. See Woods v. State, 40 Ark. App. 204, 846 S.W.2d 186 (1993).

Further, under Rule 33.1 of the Arkansas Rules of Criminal Procedure, “the judge shall upon request of the defendant or his attorney instruct the jury that such restraint is not to be considered in assessing the proof and determining guilt.” It does not appear from the abstract or the record that Stanley requested this instruction; the failure to do so will not inure to his benefit. Consequently, we cannot say that the trial court abused its discretion in requiring Stanley to wear handcuffs.

Stanley also contends that the trial court erred in denying his motion for mistrial because of certain comments made in the State’s opening statement. Stanley argues that it was improper and prejudicial for the state to suggest that he had committed other offenses outside of Jefferson County. The prosecutor’s remarks which Stanley finds objectionable are as follows:

Now, that day they ran on out of Jefferson County and they drove to some other counties and they were eventually captured in Ouachita County and returned. But we cannot today concern ourselves with the offenses that occurred in another county. We’re just going to be talking about Jefferson County.

(Emphasis added.) Stanley’s counsel moved for a mistrial; the trial court denied the motion, but offered to admonish the jury to disregard the State’s comment. Stanley declined the offer of an admonition so as not to further call the jury’s attention to the remark.

We have said that declaring a mistrial is a drastic remedy and proper only where the error is beyond repair and cannot be corrected by any curative relief. Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994). The trial court has wide discretion in granting or denying a motion for mistrial, and should resort to mistrial only where the error complained of is so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).

We have consistently upheld the trial court’s denial of mistrial where, by chance remark, it was brought out that the defendant had prior arrests, prior convictions, or committed other unspecified crimes, or where the remark is invited by the defense. Cleveland v. State, 315 Ark. 91, 865 S.W.2d 285 (1993) (venireperson remarked that her husband, a police officer, had arrested Cleveland several times); Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985) (police officer on the jury panel stated that he had arrested Novak several times in the past); McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985) (witness remarked that appellant was still facing criminal charges in another county); Sanders v. State, 277 Ark. 159, 639 S.W.2d 733 (1982) (police officers mentioned seeing controlled substances in the defendant’s bedroom and collecting evidence on another charge); Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982) (psychiatrist for the prosecution stated that he had access to defendant’s prison records). Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984) (testimony as to other offenses invited by the defense).

However, in this instance the prosecutor, not a witness, commented on other crimes during the guilt phase of Stanley’s trial. Such remarks can hardly be characterized as inadvertent when uttered by a prosecutor. Nor was the comment, coming during opening statements, invited by the defendant.

In Allard v. State, 283 Ark. 317, 675 S.W.2d 829 (1984), this court reversed the conviction where the court clerk read at the beginning of trial on a robbery charge, the original indictment which contained two counts of theft. We said that an admonishment to the jury was not sufficient to cure the error and that the defendant was not afforded a fair and impartial jury. Id.

However, in Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995), we upheld the trial court’s denial of a mistrial where the prosecutor asked a defense witness whether he had been at the same penitentiary with Heard. The question was not answered, and Heard did not request that the jury be admonished to disregard the comment. We concluded that an admonishment would have been sufficient to cure the error and that Heard could not benefit from the failure to request a curative instruction. Id.

In the instant case, despite the prosecutor’s reference to “other offenses,” there is no evidence in the abstract or record that Stanley was charged with or committed any other offenses before he was recaptured in Ouachita County. During the trial, the State presented no evidence of any of the events which transpired after Stanley drove away from the Jackson home. Although a statement given by Stanley was introduced into evidence, that portion of the statement which covered Stanley’s actions after leaving the Jackson residence was excised.

However, Stanley testified during his trial, and admitted to the escape and to most of the events that took place at the Jackson home. He also testified that he “jumped out of the car and ran” and was arrested “down in Ouachita County.” He further testified that he had not been charged with any crimes other than the escape and aggravated robbery.

In this instance, the reference by the prosecutor to “other offenses,” although improper, did not result in prejudice to Stanley. The offenses were not specified. See Novak and McFarland, supra. There was overwhelming evidence of Stanley’s guilt, from both the state’s case and Stanley’s testimony. As in Heard, supra, an admonition would have been sufficient to cure the reference to other offenses. Stanley’s failure to request such relief will not inure to his benefit on appeal.

Affirmed.

JESSON, C.J., and GLAZE, J., concur in part.

Tom GLAZE, Justice,

concurring in part. I fully agree with the majority as to point one, but concur regarding point two — its holding that the prosecutor’s reference to “other offenses” was error, albeit unprejudicial. I believe no error was committed.

It should be kept in mind that appellant Lawrence Stanley was being tried both for aggravated robbery and escape. Accordingly, the jury was entided to hear evidence of Stanley’s conduct, including other offenses, up until the time he was apprehended.

It is also significant that the record reflects that the only other offense or conduct committed by Stanley was a speeding violation. Thus, assuming the prosecutor’s remark suggested a graver offense than speeding was involved, that remark could easily have been rectified by an admonishment or cautionary statement by the trial court. Stanley failed to request an admonition. For that reason alone, the trial court was correct in denying Stanley’s mistrial motion.

JESSON, C.J., joins this concurrence.


author: DAVID NEWBERN, Justice. Donald L. Corbin, Justice

text:
    Louis HATTISON v. STATE of Arkansas
    95-563
    920 S.W.2d 849
    Supreme Court of Arkansas
    Opinion delivered May 6, 1996

      William R. Simpson, Jr., Public Defender, by: Stephen Wade Parker, for appellant.

      Winston Bryant, Att’y Gen., by: Patricia Van Ausdall, Asst. Att’y Gen., for appellee.
   DAVID NEWBERN, Justice.

On March 3 and March 7, 1995, judgments of acquittal of criminal charges were entered in favor of Louis Hattison, the appellant. In each judgment the Circuit Court recited a finding that Mr. Hattison lacked the mental capacity to commit the crime charged. There was a provision in each for automatic commitment of Mr. Hattison to the custody of the Director of the Department of Human Services for examination by a psychologist or psychiatrist in accordance with Ark. Code Ann. § 5-2-314(b) (Supp. 1995). Subsection (d) of the statute states the Director “shall file the psychiatric or psychological report with a probate court ... within thirty (30) days following entry of order of acquittal.” The report was not filed until April 7, 1995. Mr. Hat-tison argues that, due to the late filing of the report, the Probate Court lacked jurisdiction to order continuation of his commitment. We affirm the Probate Court’s order denying Mr. Hattison’s petition for release.

We agree with Mr. Hattison’s first point of appeal which is essentially that the report was late and the Probate Court erred in stating it was timely. We cannot, however, agree with his second point which is that the Probate Court lost jurisdiction as a result of the report being late and thus erred in approving his continued commitment for treatment.

When the General Assembly uses the word “shall,” we hold the effect is mandatory unless an absurdity would result. Campbell v. State, 311 Ark. 641, 846 S.W.2d 639 (1993). The 30-day requirement is thus mandatory in the literal sense. The question remains, however, whether the sanction for violation of it is, as Mr. Hattison argues, loss of jurisdiction in the Probate Court to decide whether continuation of his commitment is justified. The statute does not address any sanction to be employed, and Mr. Hattison cites no case suggesting it was the General Assembly’s intent to deprive the Probate Court of jurisdiction should the report be untimely.

In Campbell v. State, supra, we held that where a petition for involuntary commitment was not filed within 72 hours of an individual’s confinement, as required by the mandatory language of Ark. Code Ann. § 20-47-210, the Probate Court lacked jurisdiction to decide the petition.

At first blush, it might seem that the Campbell case should control this one; however, there is a significant distinction. Mr. Campbell had not been committed by a court. The State had the burden of proving Mr. Campbell should be committed, and the petition was to be filed for the purpose of initiating that proceeding. Mr. Hattison, on the other hand, has been found lacking in mental capacity sufficient to have committed the crimes with which he was charged. According to § 5-2-314(e), Mr. Hattison now has the burden of proving to the Probate Court that “his release would not create a substantial risk of bodily injury to another person or serious damage to property of another due to a present mental disease or defect.” Jurisdiction of the Probate Court was established by the “automatic” order of commitment entered by the Circuit Court.

While a commitment cannot be “indefinite,” Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981), citing Jackson v. Indiana, 406 U.S. 715 (1972), we know of no reason to deprive the Probate Court of jurisdiction due to a late psychiatric report. Had that been the intention of the General Assembly, it could easily have so provided. As the Supreme Court of Nebraska stated in State v. Steele, 399 N.W.2d 267 (Neb. 1987), a case cited by the State that is almost exactly like this one:

we find no announced penalty in the statute or the case law interpreting the statute for the State’s failure to meet the statutory time limits. The appellant gives no support for his contention that the remedy is dismissal and loss of jurisdiction.... We note that no such sanction [as is provided in the speedy trial law] is provided by the statutes governing acquittals on the ground of insanity.

Affirmed.

Corbin, J., concurs.

Donald L. Corbin, Justice

concurring. I agree with the majority opinion. I concur only to emphasize two distinctions between this case and Campbell v. State, 311 Ark. 641, 846 S.W.2d 639 (1993). The first distinction is that these cases involve interpretations of two different statutory provisions: Campbell involved an interpretation of Ark. Code Ann. § 20-47-210 (Repl. 1991), which pertains to civil involuntary commitment procedures, while this case involves an interpretation of Ark. Code Ann. § 5-2-314 (Supp. 1989), which pertains to continued confinement of persons acquitted of criminal wrongdoing on the ground of mental disease or defect. The second distinction lies in the purposes behind each statutory provision.

Section 20-47-210 sets out the necessary steps for immediate confinement of a person suffering from a mental disease or defect to the extent that he or she is a danger to himself or others. Specifically, that section provides not only that a petition must be filed with the probate court within seventy-two hours from the time the person is confined, but also that a hearing must be held to determine if there is probable cause to believe the person has a mental disease or defect, and, if so, to order that an evaluation be done. The purpose behind such statutory safeguards is to insure that persons who do not actually suffer from a mental disease or defect, or who are in no way a danger to themselves or others, are not confined against their will for an indefinite period of time. See Ark. Code Ann. § 20-47-201 (Supp. 1989) Purpose Policy.

Section 5-2-314, on the other hand, provides that one acquitted of a crime on the ground of mental disease or defect shall be committed to the custody of the Director of the Department of Human Services for the purpose of further psychological evaluation, following the circuit court’s determination that the crime involved injury to another person or serious property damage or a substantial risk of such injury or damage. Arguably, the purpose behind such an automatic confinement is to protect members of our society from being harmed by one who has already demonstrated a propensity to violate the law, as well as to protect that person from harming himself. According to the original legislative commentary to that section, this special hospitalization procedure was created expressly for those persons who have violated the law and would have been punished by our criminal justice system but for their suffering from a mental disease or defect. Because of the diverse situations addressed by the two statutes, as well as their different purposes, the time periods for which to file the necessary documents should be interpreted differently.

In Campbell, the appellant was held at the state hospital on an emergency basis, but the petition for his involuntary commitment was not filed until five days later. We reversed and dismissed the lower-court proceeding, holding that the seventy-two-hour period for which to file a petition was mandatory. The reason that provision must be interpreted as mandatory is so that one person may not unilaterally affect the involuntary commitment of another person at his or her whim, without an impartial jurist having first reviewed a valid petition and having conducted a hearing. Were the seventy-two-hour filing requirement not interpreted as mandatory, one person — be it a police officer acting on a complaint, a friend or family member with a vendetta, an estranged spouse attempting to secure custody of the children, or any other interested citizen— could unilaterally and arbitrarily affect a virtual imprisonment of another person for an indefinite period of time. The fact that the petition for Mr. Campbell’s involuntary commitment was not timely filed violated the very essence of the statutory provision, as that time period is a statutory safeguard that must be strictly observed.

In this case, the circuit court found Mr. Hattison not guilty of violating his probation on the ground that he suffered from a mental disease or defect. Immediately following that ruling, Mr. Hattison was, pursuant to statute, confined to the Arkansas State Hospital by the same circuit court. By that stage of the proceedings, Mr. Hat-tison had already been evaluated by mental health experts who determined that he was either currendy suffering from a mental disease or defect or that he had so suffered at the time the violations of his probation were committed. Mr. Hattison’s continued confinement was, therefore, neither arbitrarily nor unilaterally affected.

The essence of section 5-2-314 is to ensure that those persons acquitted of criminal acts on the ground of mental disease or defect are not carelessly released upon society without further evaluation and treatment of their condition. Accordingly, the fact that Dr. Hall’s written report was not timely filed did not require an automatic discharge of the appellant, as doing so would defeat the entire legislative purpose behind the law. In other words, unlike the situation which was presented to us in Campbell, the timely filing of the doctor’s report in this case did not violate the very essence of the statute.

In conclusion, the seventy-two-hour time period for filing a petition and conducting a hearing, as set out in section 20-47-210, must be viewed as a mandatory, built-in safeguard which is necessary to ensure that no person is involuntarily committed without a court having reviewed his or her case. Under the provisions of section 5-2-314, however, there is no need for similar insurance, as the person committed has already been evaluated as having a mental disease or defect, and his case has already been reviewed by a court. For this reason, that section’s thirty-day time period in which to file the necessary written report of the doctor’s findings more closely resembles a procedural guideline which must be followed in order to confine a person beyond the initial statutory evaluation period. Accordingly, the decision in this case may be reconciled with that handed down in Campbell.


author: DONALD L. Corbin, Justice.

text:
    Jeffrey Lee COLLINS v. STATE of Arkansas
    CR 95-956
    920 S.W.2d 846
    Supreme Court of Arkansas
    Opinion delivered May 6, 1996

      Steven E. Cauley, P.A., by: Steven E. Cauley, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen. and Sr. Appellate Advocate, for appellee.
   DONALD L. Corbin, Justice.

Appellant, Jeffrey Lee Collins, appeals the judgment of the Drew County Circuit Court denying his petition for postconviction relief under Ark. R. Crim. P. 37.1. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(5). Appellant raises four points for reversal. We find merit to the first point concerning appellant’s right to be tried by a twelve-member jury, and therefore reverse and remand for a new trial.

Appellant was charged by information filed January 31, 1992, with rape and two counts of third-degree carnal abuse. The information charged that appellant had engaged in sexual intercourse or deviate sexual activity with D.D., who was aged fourteen years at the time, and that appellant had engaged in sexual intercourse with A.T., who was aged eleven years at the time. Following trial, the jury convicted appellant of two counts of third-degree carnal abuse and sentenced him on each count to one year in the county jail and fined him $1,000.00. The jury also convicted appellant of rape and sentenced him to twenty years’ imprisonment. Appellant appealed, and the convictions were affirmed in a nonpublished opinion by the Arkansas Court of Appeals (CACR 93-578, June 15, 1994).

Appellant obtained new counsel and filed his petition for post-conviction relief pursuant to Rule 37. The trial court held a hearing on the petition, but the record was destroyed when the storage room where it was kept was vandalized. In accordance with Ark. R. App. P. Rule 6(d), appellant’s counsel filed a statement of the proceedings from the Rule 37 hearing; the state did not file any objections. According to the statement of the proceedings, appellant raised three points at the hearing: that his conviction was unconstitutional because it was rendered by a jury of eleven, that his conviction was unconstitutional because his trial counsel was ineffective, and that he was entitled to relief because the victim repudiated her trial testimony.

The trial court denied the petition for postconviction relief by order filed April 12, 1995. Appellant filed a motion for reconsideration on April 20, 1995, which the trial court denied on May 26, 1995. Appellant filed his notice of appeal to this court on May 31, 1995.

Prior to considering appellant’s arguments for reversal of the judgment denying his petition for postconviction relief, we address a jurisdictional question raised by appellee. The state contends that appellant filed his notice of appeal late, and therefore, this court is without jurisdiction to hear this appeal. The state argues that appellant’s motion for reconsideration of the order denying his postcon-viction relief did not extend the time appellant had to file his notice of appeal. The state bases its argument on the fact that a motion for reconsideration is not one of the three post-trial motions listed in Ark. R. App. P. 4(b). The state recognizes and appellant argues that Ark. R. Crim. P. 36.22 establishes a broad rule as to what motions will extend the time in which to file a notice of appeal. However, the state argues that Rule 36.22 only applies to true post-trial motions and not to postconviction proceedings. The state concedes that if Ark. R. Crim. P. 36.22 is controlling, the notice of appeal was timely.

Rule 36.9 of the Arkansas Rules of Criminal Procedure provides that appeals may be taken within thirty days of the date of entry of an order denying a “a post-trial motion under Rule 36.22” or “the date of entry of an order denying a petition for postconviction relief under Rule 37.” Ark. R. Crim. P. 36.9(a)(2) and (a)(4). As outlined earlier in this opinion, the trial court entered the order denying appellant’s petition for postconviction relief on April 12, 1995, making appellant’s notice of appeal due May 12,1995, pursuant to Rule 36.9. However, appellant filed a motion for reconsideration on April 20, 1995, and the trial court did not deny this motion until May 26, 1995. Appellant filed his notice of appeal five days later on May 31, 1995.

Arkansas Rule of Criminal Procedure 36.22 provides:

A person convicted of either a felony or misdemeanor may file a motion for new trial, a motion in arrest of judgment, or any other application for relief, but all motions or applications must be filed prior to the time fixed to file a notice of appeal. . . . Upon the filing of any motion or other application for relief in the trial court, the time to file a notice of appeal shall not expire until thirty (30) days after the disposition of all motions or applications. [Emphasis added.]

The terms of Rule 36.22 are broad and include a motion for reconsideration of the denial of postconviction relief in the category of “other application for relief.” Thus, the last sentence of Rule 36.22 makes it clear that, because he filed the motion for reconsideration prior to the time fixed to file a notice of appeal, appellant had thirty days from the disposition of his motion for reconsideration in which to file a notice of appeal. Appellant’s notice of appeal was therefore timely filed on May 31, 1995, five days after the denial of the motion for reconsideration, and does not create a jurisdictional problem for this court.

Appellant’s first argument for reversal is that the trial court erred in denying his petition for postconviction relief because he was denied his right under the Arkansas Constitution to be tried by a twelve-member jury. This court will reverse a trial court’s denial of postconviction relief only if its findings are clearly erroneous or clearly against the preponderance of the evidence. Vickers v. State, 320 Ark. 437, 441, 898 S.W.2d 26, 28 (1995).

The pertinent underlying facts are these. After twelve jurors were seated in appellant’s trial, the trial court inquired as to whether counsel wanted alternate jurors or whether it was agreed by counsel that the case would be tried to the twelve jurors already chosen or their survivors. The prosecuting attorney answered yes, and appellant and his trial counsel did not respond. The jury was then sworn, and the trial proceeded. During the trial, the court received a note that the daughter of one of the jurors was being hospitalized. The juror was excused. The trial resumed with no discussion concerning the now eleven-member jury.

Appellant asserts that he had a constitutional right to be tried by a jury of twelve members and that he did not expressly waive that right. The state responds that appellant is barred from raising this point on appeal because he did not raise it as a “free-standing” issue before the trial court; rather, he made his eleven-person-jury argument as one of several bases for his ineffective-assistance-of-counsel claim. The state further responds that even if this point were properly before the trial court, it would not have erred in denying the postconviction relief because, pursuant to Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988), a defendant cannot obtain postconviction relief on the basis of mere errors, even constitutional errors.

On the record presented to us, we conclude this issue was properly before the trial court. The state is correct in citing Finley, for the proposition that even constitutional issues must be raised in the trial court and on direct appeal, rather than in Rule 37 proceedings. However, this court has made an exception for errors that are so fundamental as to render the judgment of conviction void and subject to collateral attack. Finley, 295 Ark. 357, 748 S.W.2d 643; Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934 (1980). We have limited this exception to cases that comply with the time requirements of Rule 37. Prince v. State, 315 Ark. 492, 868 S.W.2d 77, cert. denied, 114 S. Ct. 1857 (1994). As applied to this case, Rule 37.2(c) provides that the Rule 37 petition must be filed within sixty days of the date the court of appeals issued the mandate, July 6, 1994. Appellant satisfied this requirement by filing his petition in circuit court on September 2, 1994.

We must determine then whether the denial of the right to a twelve-person jury is an error so fundamental as to render the judgment of conviction void and subject to collateral attack. The answer to that question, in turn, answers the question of whether appellant can raise this argument for the first time in post-conviction proceedings.

In Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995), this court cited Williams v. Florida, 399 U.S. 78 (1970), and recognized that a twelve-member jury is not a necessary ingredient of the Sixth Amendment right to trial by jury, made applicable to the states through the Fourteenth Amendment. However, we referred to Byrd v. State, 317 Ark. 609, 879 S.W.2d 435 (1994), in concluding that the guarantee in Ark. Const, art. 2, § 7 of a defendant’s right to a jury trial meant the right to. be tried by a twelve-member jury and that such right must be waived in the manner prescribed by law. See also, Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992). We referred to Rules 31.1 through 31.5 of the Rules of Criminal Procedure as establishing the process for waiver and explained that:

[E]xcept in misdemeanor cases where only á fine is imposed by the court, a defendant must waive his right personally either in writing or in open court and the waiver must be assented to by the prosecutor and approved by the court; a verbatim record of the waiver is required. . . . [I]t is the court’s burden to ensure that, if there is to be a waiver, the defendant waives her right to trial by jury in accordance with the Arkansas Constitution and Rules of Criminal Procedure.

Grinning, 322 Ark. at 48-49, 907 S.W.2d at 691-92. We fiirther explained that the denial of the right to a jury trial is a serious error for which the trial court should intervene and is an exception to the contemporaneous-objection rule. 322 Ark. at 49, 907 S.W.2d at 692. See also Calnan, 310 Ark. 744, 841 S.W.2d 593. We quoted the Arkansas Court of Appeals in referring to the right to trial by jury as a “fundamental constitutional right.” Grinning, 322 Ark. at 50, 907 S.W.2d at 692. Consistent with Calnan and Grinning, we conclude that the right to trial by a twelve-member jury is a fundamental right, the violation of which renders the judgment void and subject to collateral attack. Therefore, we conclude that appellant may raise this issue for the first time in Rule 37 proceedings.

The facts as recited previously clearly reflect that appellant was convicted by an eleven-member jury. Appellant did not waive his right to trial by a twelve-member jury personally in writing or in open court. Thus, the facts are equally clear that no waiver “in the manner prescribed by law” occurred in this case.

The violation of appellant’s jury-trial right requires that appellant receive a new trial. We must therefore reverse the judgment and remand for a new trial. Having granted the requested relief of a new trial, we need not address appellant’s remaining arguments for reversal of the denial of his postconviction petition.

Reversed and remanded.

DUDLEY, J., not participating.