text:
    Emily Kitchens KOLB v. Isaac MORGAN, et al.
    92-1344
    854 S.W.2d 719
    Supreme Court of Arkansas
    Opinion delivered May 24, 1993

      Keith, Clegg & Eckert and Paul C. Crumpler, for appellants.

      Henry C. Kinslow, William J. Wynne; and Arnold, Hamilton & Streetman, by: James H. Hamilton, for appellees.
   Robert H. Dudley, Justice.

This appeal involves conflicting claims to the ownership of mineral interests. The facts necessary to understand the dispute are as follows. Ike Broom-field died intestate owning a tract of land in fee simple. He was survived by eight children, one of whom was an incompetent. After his death, each of his children owned an undivided one-eighth interest in the tract as a tenant in common. Subsequently, one of the children conveyed a 1/20 mineral interest to a third party. All parties agree that this deed conveying the mineral interest operated as a constructive severance of the minerals from the surface and created two titles, one to the surface and one to the minerals. See Schnitt v. McKellar, 244 Ark. 377, 427 S.W.2d 202 (1968). At that time, the children each owned two estates, one to the surface and the other to the minerals, but the two estates were owned in different ratios. The title to the surface remained in undivided one-eighth interests in common, while the title to the minerals had a different ratio. On January 3,1952, one of the seven competent children was appointed guardian of the estate of the one incompetent child, who was then in the State Hospital in Benton, and the next day, the seven competent children, including the guardian, filed suit to partition the tract. The guardian, was named as the defendant. The petition for partition did not mention the mineral interests. The seven competent children were represented by one attorney. The chancellor appointed three attorneys as commissioners to view the land and determine whether it could be divided in kind. Three days later, the commissioners reported to the court that the land could be divided in kind and gave the court the legal descriptions of the proposed division in kind. Four months later, the chancellor ordered the land partitioned in kind on the basis of the recommendation of the commissioners. The decree of partition does not mention the mineral interests; it neither includes nor excludes the mineral interests. All eight of the children are now deceased, and their successors in interest, which include both the appellants and appellees, executed oil and gas leases. A well has been drilled and completed on the land, crude oil has been sold, and the proceeds are being held subject to division. This interpleader action was filed in chancery court, with the proceeds from the crude oil production being held subject to a determination by the chancellor of the right to the proceeds.

All of the parties agree that partition, whether involuntarily through court action or voluntarily by partition deed, merely severs the unity of possession. See Johnson v. Ford, 233 Ark. 504, 345 S.W.2d 604 (1961). None of the parties lose anything by the partition action except the right to hold the property in common, nor gain anything except to hold the interest claimed by him in severalty. Id. at 505, 345 S.W.2d at 605. However, in this case the parties to the partition suit owned two different estates. In Hutchinson v. Sheppard, 225 Ark. 14, 279 S.W.2d 33 (1955), we held that when the parties to a partition deed own two estates in land, one in common and in the same ratio as the division, and the other not in common and therefore not in that ratio, the deed should be construed as a conveyance only of the estate held in common. The rule prevents either party from gaining an advantage at the other’s expense. We affirmed that holding in Johnson v. Ford. The same reasoning would be applicable to a partition suit such as the one at bar. Here, the eight children owned two estates in the tract, one estate, the surface estate, was in common and in the same ratio as the division by the decree, and the other estate, the mineral interest, was not in the same ratio. Thus, under the doctrine of Hutchinson v. Sheppard, the partition decree would not have included the mineral interests.

However, in Bradley v. Teague, 266 Ark. 1013, 589 S.W.2d 200 (Ark. App. 1979), the court of appeals distinguished a family settlement agreement. In that case, the husband and wife owned the fee estate and conveyed away a fractional royalty interest in the minerals. After the husband’s death, the widow and children of the decedent orally entered into a family settlement agreement, and each took possession of his or her land and began to make improvements on his or her tract. Nine years after the oral agreement had been reached, a partition deed was drafted and all but one, named Indiana, signed. The widow and all of the children who signed the partition deed filed suit against Indiana, and the trial court confirmed the division pursuant to the family settlement agreement and quieted title of all the parties as against the claims of the others. Later, and apparently after the death of the widow, all of the children or their heirs, except for Indiana, conveyed a 1 /2 interest in the mineral estate underlying Indiana’s tract to a third party. Five years later, Indiana conveyed her surface estate and part of the mineral estate to a different third party. At a trial involving ownership of the mineral estate, the issue was whether the family settlement and subsequent decree vested title in fee simple in each of the children to the tract each separately received, or vested only title to the surface estate. The trial court found that the third party who purchased from Indiana should prevail. The court of appeals affirmed primarily because the family intended to settle the entire family estate and not just a part of it. The court of appeals additionally considered other factors, which are set out in the opinion, in reaching its result. The distinction is sensible and just. In a family settlement agreement, one person might surrender his interest in the property and ask nothing in return, and the family members who reach such a settlement would likely intend to reach an agreement to settle all of the estates, whether severed or not.

The chancellor held that this interpleader suit was governed by the law set out in Johnson v. Ford, 233 Ark. 504, 345 S.W.2d 604 (1961), and Hutchinson v. Sheppard, 225 Ark. 14, 279 S.W.2d 33 (1955), and, therefore, the partition decree did not include the mineral interests. As a result, appellees are entitled to the funds. We affirm the ruling of the chancellor.

Appellants argued below, and now argue on appeal, that while a partition action was filed, it should be treated as a family settlement agreement because there was, in fact, a family settlement, and the partition action was the only way the agreement could be effectuated since one of the eight children was incompetent. They contend this is proven circumstantially by the evidence that seven of the children went to the same attorney and employed him to file the action, that three attorneys were appointed commissioners, that they reported back in three days, and that the decree of partition refers to “all the right, title, equity, interest, and estate of the parties hereto, either at law or in equity, in and to the following lands.”

We cannot hold that the finding of the chancellor was clearly erroneous. There was no direct evidence of a family settlement agreement. There is nothing in the record to support appellant’s assertion that the appointment of attorneys as commissioners demonstrates that there was a family agreement.

Appellants argue that it is “common knowledge” that in many partition suits the family agrees to a division in kind, the commissioners only replicate that agreement, and then the family members draw numbers to see which co-tenant gets which tract. However, there was no evidence of such a practice, and such an alleged practice is not entitled to judicial notice. See A.R.E. Rule 201 (b). In fact, and to the contrary, the petition for partition stated that the tract was “susceptible of division into eight equal parts,” but “if it be found that such partition cannot be had . . . that said lands be sold and that the proceeds of such sale be divided.” Finally, there was no proof to show that there was a family agreement merely because the commissioners reported back in three days. The chancellor labeled such proof as only “speculation” that there was a family settlement agreement, and we cannot hold that finding was clearly erroneous.

The chancellor wrote that if there had been a family settlement agreement, it would not have been necessary to file the suit in partition since it could have been effected by a partition deed signed by all of the competent heirs and by the guardian with the approval of the probate court. Appellants attack this finding by contending that under the then existing statutes it was very clear that a partition suit against an incompetent was specifically authorized, while it was not nearly so clear that it could be done with approval of the probate court. While the then applicable statute, Ark. Stat. Ann. § 57-639, was subsequently amended to make it absolutely clear that the guardian of an incompetent person can participate in the partition of property, the probate court could have approved a partition deed under the statute in effect at the time the petition for partition was filed.

The chancellor also found that the incompetent was obviously not able to enter into a valid family settlement contract. Appellants argue that it does not matter that the incompetent could not have entered into a valid contract because the family agreement would still be binding on the competent members of the family. See Pfaff v. Clements, 213 Ark. 852, 213 S.W.2d 356 (1948). Even though the competent members might enter into an agreement among themselves, the fact of incompetency of one member of the family was a valid factor for the chancellor to consider in determining whether the appellants had met their burden in proving a family settlement agreement. In sum, there was no direct evidence of a family settlement agreement. The chancellor found that the circumstantial evidence of a family settlement agreement was too speculative to amount to substantial evidence, and we cannot hold that finding clearly erroneous.

Appellants next argue that the chancellor erred in failing to find that all of the family or their privies confirmed the agreement. We summarily dismiss the argument. We have affirmed the finding that there was no family settlement agreement. Since there was no family settlement agreement, there was no agreement to be confirmed by the family. Further, the facts support the chancellor’s finding that there was no proof of a confirmation of an agreement.

In their next argument, appellants contend that the chancellor erred in refusing to consider the fact that none of the original family members objected to the family settlement agreement for more than forty years. We have no way of knowing whether the chancellor considered this fact or not, but, again, we summarily hold that since there was no family settlement agreement, there was no need to object to it.

The final issue involves the award of attorney fees to the attorneys who filed this interpleader suit. Clearly, our rule is that an attorney who files an interpleader action is not entitled to fees. Construction Mach. of Arkansas v. Roberts, 307 Ark. 252, 819 S.W.2d 268 (1991); Birdsong Cabinet Shop, Inc. v. Bland, 307 Ark. 149, 817 S.W.2d 886 (1991); Saunders v. Kleier, 296 Ark. 25, 751 S.W.2d 343 (1988). However, this issue was not brought to the attention of the chancellor, and we will not consider it for the first time on appeal. Our holding comes about in the following manner. The complaint of interpleader, in paragraph 20, asked for reasonable attorneys’ fees. Four of the separate answers responded that the defendants “deny the material allegations of paragraph 20 of the complaint for interpleader,” and one answer provided that “any costs and attorney fees paid the plaintiff/ interpleader in this matter should first come from Herbert E. Russell’s interest in this estate.” In short, the defendants simply denied the material allegation. Appellants’ abstract does not reflect that they ever apprised the chancellor that the award of attorney fees was improper under the law.

A denial of a material allegation is generally thought to be a denial of material factual allegation, see ARCP Rule 8(b), while avoidance of a claim because of operation of law is generally thought to require the filing of an affirmative defense, see ARCP Rule 8(c). The chancellor apparently considered this issue in those terms, since his ruling was unusually specific about the exact amount of costs to be reimbursed and the amount of attorneys’ fees to be awarded. The chancellor specified that the attorneys were to be reimbursed $64.74 for the filing fee, $209.10 for the publication fee, $344.76 for the cost of certified mail and were awarded $16,788.79 as attorneys’ fees. The appellants never apprised the chancellor that this was anything other than a dispute over the factual amounts of the costs and fee. The applicable case law was never mentioned, either in a pleading or in oral argument. Under these facts, it appears that the appellants are raising the issue for the first time. As we have said many times, most recently in Burns v. Burns, 312 Ark. 61, 66, 847 S.W.2d 23, 27 (1993). “The argument may have merit, but it is not one that we reach because the chancellor was not apprised of the issue, and we do not consider issues raised for the first time on appeal.”

Affirmed.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Larry BURNS, Executor of the Nettie Frost Estate v. Bill ADAMSON, et al.
    92-1341
    854 S.W.2d 723
    Supreme Court of Arkansas
    Opinion delivered May 24, 1993

      Butler, Hicky & Long, by: Fletcher Long, Jr., for appellant.

      Rees Law Firm, by: George R. Wadley, Jr., for appellee.
   Steele Hays, Justice.

The question in this will contest is whether one of the two attesting witnesses’ signatures on a will satisfies the statutory requirements of attestation.

On February 3, 1992, Nettie Frost signed a will in her hospital room in Memphis, Tennessee. She died the following day. Appellant, Larry Burns, nephew of Ms. Frost, filed a petition for probate of the will as sole beneficiary. Other nephews and a niece contested the will.

A hearing established that around noon February 3, Ms. Frost asked a friend, Jewell Burns, to sign her will, which Ms. Burns did. Ms. Burns signed in the presence of Ms. Frost but at that time Ms. Frost had not yet signed the will, and did not sign it until several hours later, out of the presence of Ms. Burns. Ms. Burns testified unequivocally that Ms. Frost’s signature was not on the will at the time she signed as a witness, and that she did not see Ms. Frost again before she died.

At approximately 5:00 p.m. the same day, Ms. Frost was visited by Faye Burns, Larry’s wife, and Ethel Pettus, a long time friend of Ms. Frost. Ms. Frost then signed the will in the presence of both of them and Ms. Pettus signed the will as a witness in the presence of Ms. Frost. Faye Burns did not sign the will as a witness. There is no dispute that Jewell Burns was not there at the time Ms. Frost signed her name to the will, and Ms. Pettus testified that when she signed the will, Jewell Burns’s signature was on it.

The trial court entered an order finding the will was not validly executed in the presence of two persons and that the estate of Nettie Frost should be administered according to the laws of descent and distribution. Larry Burns brings this appeal challenging the trial court’s holding. We agree with the ruling of the probate judge.

The statute setting out the requirements for proper execution of a will provides:

Ark. Code Ann. § 28-25-103 (1987). Execution generally.
(a) The execution of a will, other than holographic, must be by the signature of the testator and of at least two (2) witnesses.
(b) The testator shall declare to the attesting witnesses that the instrument is his will and either:
(1) Himself sign; or
(2) Acknowledge his signature already made; or
(3) Sign by mark, his name being written near it and witnessed by a person who writes his own name as witness to the signature; or
(4) At his discretion and in his presence have someone else sign his name for him. The person so signing shall write his own name and state that he signed the testator’s name at the request of the testator; and
(5) In any of the above cases, the signature must be at the end of the instrument and the act must be done in the presence of two (2) or more attesting witnesses.
(c) The attesting witnesses must sign at the request and in the presence of the testator.

The provision governing this case is Section (5), which provides that the act of the testator signing must be done in the presence of two or more attesting witnesses.

Clearly the statute was not complied with in this case and appellant acknowledges that. He argues that because we have accepted substantial compliance with this procedure in the past, we should do so now.

While we have found substantial compliance in some situations, we have never extended it to allow a witness to attest a will before the testator signs it and who in fact never sees the testator sign. Where substantial compliance has been found, it was on circumstances much less substantive and material than these. We have found substantial compliance with the requirement that a signature be placed at the “end” of the will, Clark v. National Bank of Commerce, 304 Ark. 352, 802 S.W.2d 452 (1991); Weems, Administrator v. Smith, 218 Ark. 554, 237 S.W.2d 880 (1951). And we have applied it to the requirement that the testator declare to the witnesses that this is his will, Faith v. Singleton, 286 Ark. 403, 692 S.W.2d 239 (1985); Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983); and to the requirement that the witnesses must sign at the request of the testator, Hanel v. Springdale, Adm’r, 237 Ark. 356, 372 S.W.2d 822 (1963).

Appellant cites Anthony v. College of the Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944), as controlling in this case. In Anthony, one of the two witnesses’ signatures was in question, that of L.M. Guthrie. The testator had brought the will to Guthrie’s office and asked him to sign it as a witness. The two were well acquainted. Guthrie testified as follows:

I did not read the instrument thus presented to me, but signed same and then asked him if this was his will and he said that it was. He did not sign the instrument in my presence. Nothing was said at the time whether he had signed it, and nothing was said about his signature. The [other witness] was not present when I signed the instrument, and I was not present when he signed it, if he did sign it, and did not see him sign it.

The court noted that Guthrie did not say the testator’s signature was not on the instrument at the time he signed it and it would presume the testator’s name was on the instrument at the time he gave it to Guthrie to sign.

When [the testator] presented the instrument to the witness, Guthrie, it was for the purpose of securing Guthrie’s signature as a witness, not to the will, but as a witness to [the testator’s] signature on the will. When Guthrie signed the will as a witness the testator told him the instrument was a will. It could not have been a will without his signature being on it at that time, and while the testator said nothing about his signature, the presumption is, in the absence of proof to the contrary, that his signature was on the will when he presented it to Guthrie. [Our emphasis.]

Id. at 216.

This case is distinguishable from Anthony, where we could indulge in the presumption that the testator’s signature was on the will, there being no evidence to the contrary. Here there is clear evidence to the contrary and no presumption is permissible. We believe this result is consistent with other authorities on this issue.

It is stated in 2 W. Bowe & D. Parker, Page on The Law of Wills, % 19.138(1960), that under the great weight of authority if the subscribing witnesses sign their names to the will before the testator signs, the will is not executed in compliance with the statutes. And in In Re Brasher’s Estate, 54 Az. 430, 96 P.2d 747 (1940) it was pointed out there were two lines of authority on the strictness of this rule — one being the English rule holding unanimously the attestation of a will is not valid unless the testator signs before the attesting witnesses and this is followed by a number of American jurisdictions. The other line of cases holds when the execution and a testation of a will occur at the same time and place and form part of the same transaction, it is immaterial that the witnesses subscribe before the testator. The opinion reads:

But, we know of no case which holds the will is valid where one of the necessary witnesses attested the will before the testator signed it and the attestation of the witness and signature of the testator were at different times and places, so that the witness did not see the testator sign or hear him acknowledge his signature after signing. There are a number of cases on the other hand, which expressly hold that under such circumstances the will cannot stand. (Citations omitted). [Our emphasis.]

To the same effect, see the selected cases in Annotation, Validity of Will as Affected by Fact that Witnesses Signed Before Testator, 91 A.L.R.2d 737 (1963).

In sum, where the witness did not see the testatrix sign the will or acknowledge it, there was a failure to follow the requirements of § 28-25-103 and the probate judge was correct in so ruling.

Affirmed.


author: Tom Glaze, Justice.

text:
    STATE of Arkansas v. Jimmy Lee McCANN
    93-102
    853 S.W.2d 886
    Supreme Court of Arkansas
    Opinion delivered May 24, 1993

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.

      William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., for appellee.
   Tom Glaze, Justice.

This case involves interpretation of the speedy trial rule, Ark. R. Crim. P. 28.3(a), as it relates to criminal charges brought in circuit court and subsequently transferred to juvenile court.

Jimmy Lee McCann was arrested on October 1, 1991. On December 27, the state filed a four-cpunt information against him in the Pulaski County Circuit Court, and a trial was scheduled for April 13, 1992. McCann, along with two codefendants, was charged with one count of burglary, one count of theft, and two counts of theft by receiving. The only count involved in this appeal is Count III, theft by receiving, alleged to have occurred on September 11, 1991.

McCann waived trial by jury, and at the bench trial on April 13,1992, McCann’s counsel made an oral motion to transfer the proceedings to the juvenile division, which transfer was granted. The juvenile court accepted the transfer on April 14. On May 4, the State filed a petition in the juvenile court that McCann be declared a juvenile delinquent based on the identical charges set out in the earlier felony information. Proper service was perfected on McCann and his mother on May 5.

The juvenile court set an adjudication hearing for October 13, at which time McCann’s counsel raised the issue of speedy trial. A special judge rescheduled the hearing for October 28, at which time the court dismissed the remaining charge against McCann for failure to prosecute within the one-year requirement. On November 2, the State filed a “motion to supplement record” which among other things asked the court to set aside the October 28 order of dismissal. On November 30,1992, the court refused to set aside its order, and this appeal ensued.

Ark. R. Crim. P. 28.3(a) provides the following general rule as to periods of time that are excludable from the defendant’s right to a speedy trial within one year from the time of arrest:

The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant and the period during which he is incompetent to stand trial, hearings on pretrial motions, interlocutory appeals, and trial of other charges against the defendant. No pretrial motion shall be held under advisement for more than thirty (30) days, and the period of time in excess of thirty (30) days during which any such motion is held under advisement shall not be considered and excluded period.

The State asks us to interpret this rule so that where, on a juvenile defendant’s motion, a circuit court transfers a felony criminal charge over to juvenile court, the entire time during which the case was pending before the circuit court be declared an excludable period under Rule 28.3(a). Under the State’s theory, the time period spent in circuit court would be excludable as an “other proceeding concerning the defendant”. Accordingly, the State contends that the period of December 27, 1991, when the state filed the felony information in circuit court, to April 13, 1992, when the circuit court granted McCann’s motion to transfer his case to the juvenile division (a period of approximately three and three-quarter months) should be excluded and added to the twelve-month period beginning with McCann’s arrest on October 1, 1991. Under the State’s contention, the October 28, 1992, adjudication hearing date in juvenile court would be well within the one-year requirement for speedy trial. However, we must reject the State’s argument.

A criminal defendant’s constitutional right to a speedy trial is protected under Ark. R. Crim. P. 28. Rules 28.1(c) and 28.2(a) require that the State bring the defendant to trial within one year of the filing of charges against him. Once it is shown that the trial is scheduled to begin after the speedy-trial period has expired, the State then has the burden of showing that any delay was the result of the defendant’s conduct or was legally justified by the excludable periods recognized in Rule 28.3. White v. State, 310 Ark. 200, 833 S.W.2d 771 (1992); Glover v. State, 307 Ark. 1, 817 S.W.2d 409 (1991). The exclusion of those periods so identified under 28.3 is mandatory.

In this case, the State elected to file the charges in circuit court where the State’s proceeding against McCann stayed for nearly four months. No delay attributable to McCann occurred until his counsel filed his motion to transfer. Even after the transfer was accepted by the juvenile court, the State still had approximately five and one-half months in which to try Mc-Cann’s case and still be within the one-year period of the speedy-trial rule. Under Rule 28.3(a), delays caused by hearings on pretrial motions filed by the defendant are specified as excludable periods. Rule 28.3(a) limits the excludable period caused by a pretrial motion taken under advisement not to exceed thirty days.

As mentioned above, McCann’s motion to transfer was not made until the date of trial on April 13,1992, and the circuit court heard his motion and granted it on that same date. A memorandum in the record indicates acceptance of the transfer by the juvenile court on April 14. Applying Rule 28.3(a) to these facts, the only time that is remotely attributable to McCann and, thus excludable, is the one day between submission of McCann’s motion to transfer in one court and acceptance by the receiving court. Because the October 28, 1992, adjudication hearing date does not fall within the twelve-month period beginning when McCann was arrested on October 1,1991, and because the State failed to show that there was any other delay caused by McCann that was legally justified under Rule 28.3, the chancellor was correct in finding that McCann’s right to speedy trial was violated.

Hays, J., dissents.

       The other counts were dismissed for reasons not at issue here.


text:
    Danny W. WISEMAN v. STATE BANK & TRUST, N.A.
    93-177
    854 S.W.2d 725
    Supreme Court of Arkansas
    Opinion delivered May 24, 1993

      Bairn, Gunti, Mouser, DeSimone & Robinson, by: Judith A. DeSimone, for appellants.

      Hilburn, Calhoon, Harper, Pruniski & Calhoon, Ltd., by: J. Maurice Rogers and Mark K. Halter, for appellee.
   Tom Glaze, Justice.

On June 29, 1992, the appellants, Danny and Sonya Wiseman, visited their local Toyota-Hyundai car dealership in Pine Bluff and selected to purchase a 1988 Toyota Célica. The Wisemans informed their salesman, Mr. Bill Tucker, that, in order for them to buy the car, an installment plan financing arrangement would have to be obtained. Tucker provided the Wisemans with a credit application which had been supplied to the dealership by the appellee, State Bank and Trust, N.A. Tucker explained that State Bank was not the exclusive financing agent of the dealer and that the Wisemans were not required to finance the car’s purchase through that bank. Nevertheless, the Wisemans completed and executed the credit application. Tucker then faxed the application to State Bank for its acceptance in Tulsa, Oklahoma.

State Bank is a national banking association under the National Bank Act, Rev.Stat. § 5157, 12 U.S.C. § 37 (1988). Its charter address and principal place of business is Tulsa, Oklahoma. Although State Bank does not operate any branch offices within the state of Arkansas, it does have ties to our state — a majority of its stock is owned by an Arkansas bank holding company, Arvest Bank Group, Inc.

Mr. Rick Huck, an employee of State Bank, reviewed the Wisemans’ credit application, determined their credit was adequate for participation in the financing program at an interest rate of thirteen percent (13%) per annum, and telephoned Tucker informing him that the Wisemans’ application for credit had been accepted. Huck then directed Tucker to have the Wisemans complete and execute a credit loan contract and security agreement which had also been provided by State Bank. The Wisemans returned to the dealership on July 1, 1992, to execute the required documents. The loan contract contained the following relevant terms: (1) the interest rate on financing through State Bank would be thirteen percent (13 %) per annum, and (2) the parties intended and agreed that the contract was to be governed by and construed under the laws of Oklahoma. After the Wisemans executed the agreement, Tucker forwarded it to State Bank for its acceptance and execution. The dealer then allowed the Wisemans to drive the car home. On July 2,1992, in Tulsa, Huck reviewed, approved, and executed the contract on behalf of State Bank.

The Wisemans made the first three installment payments of $174.56 prior to stopping payments. On September 18, 1992, they instituted a declaratory judgment action in the Circuit Court of Jefferson County, alleging that the loan contract violated the maximum lawful rate of interest under the Arkansas Constitution, and thus, was usurious. The parties entered a joint stipulation of facts and each filed a motion requesting summary judgment. By letter opinion, the trial judge found there were no genuine issues of material fact and granted State Bank’s motion for summary judgment by refusing to apply Arkansas’s usury law and holding that the parties’ contract was not invalid for the two following independent and alternative reasons: first, under the choice-of-law principle, the law of Oklahoma, and not Arkansas, governed; and second, even if the choice-of-law principle required application of Arkansas law to the parties’ contract and the subject transaction, the National Bank Act, Rev.Stat. § 5197, as amended, 12 U.S.C. § 85 (1988), and the doctrine of federal preemption, mandate the application of Oklahoma’s interest rate provisions. Although the trial court may be correct for both reasons, we affirm on the basis of the National Bank Act because we believe that Act clearly controls the parties’ transaction here.

The interest rate which a national banking association may charge is governed by the National Bank Act, Rev.Stat. § 5197, 12 U.S.C. § 85 (1988), which reads in pertinent part as follows:

Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the state. . . where the bank is located, . . .

On appeal, the Wisemans impliedly concede that State Bank is a banking association created under the National Bank Act. Accordingly, the rate of interest State Bank can charge on any loan is governed under 12 U.S.C. § 85 (1988) and is the rate allowed by the laws where State Bank is “located.” The Wisemans do not contend below or on appeal that charging interest at a rate of thirteen percent is violative of Oklahoma’s usury law. Instead, for reversal, the Wisemans advance the argument that State Bank is not “located,” as that phrase is defined under 12 U.S.C. § 85 (1988), in the state of Oklahoma. Specifically, the Wisemans contend that because Arvest Bank Group, Inc., an Arkansas Corporation, owns a majority of State Bank’s stock, the Bank in actuality is “located” in Arkansas. We disagree.

In Marquette Nat’l Bank of Mpls v. First of Omaha Service Corp., 439 U.S. 297, 99 S. Ct. 540, 58 L.Ed.2d 534 (1978), the United States Supreme Court was granted an opportunity to interpret 12 U.S.C. § 85 (1988) under facts very similar to those here. The First national Bank of Omaha, situated in Omaha, Nebraska, solicited Minnesota customers to take part in its credit card business. The Omaha Bank charged Minnesota customers interest on the balance due at a rate permitted under the laws of Nebraska, but in excess of that permitted by the laws of Minnesota. Marquette National Bank, situated in Minneapolis, Minnesota, brought suit to enjoin Omaha Bank’s credit card business in Minnesota until such time as the Omaha Bank complied with the usury laws of Minnesota. A unanimous Court first held that the Omaha Bank was an instrumentality of the federal government, and as such was necessarily subject to the paramount authority of the United States. Hence, the Court concluded that the interest rate that a national bank may charge was governed by federal law. Further, the Court stated that under 12 U.S.C. § 85 (1988), the Omaha Bank was “located” in Nebraska, and accordingly, could charge its customers, whether in-state or out-of-state, a rate of interest permissible under the laws of Nebraska.

Concerning the definition of “located” — the issue now before our court — the Court stated the following:

There is no question but that Omaha Bank itself, apart from its BankAmericard program, is located in Nebraska. Petitioners concede as much. [Cites omitted.] The National Bank Act requires a national bank to state in its organization certificate ‘the place where its operations of discount and deposit are to be carried on, designating the State, Territory, or district, and the particular county and city, town, or village.’ 12 U.S.C. § 22. The charter address of Omaha Bank is in Omaha, Douglas County, Nebraska. The bank operates no branch banks in Minnesota..

Marquette, 439 U.S. at 309, 99 S. Ct. at 545-546, 58 L.Ed.2d at 542. In response to Marquette National Bank’s argument that since the Omaha Bank systematically solicited Minnesota residents for credit cards to be used in transactions with Minnesota merchants, the Omaha Bank, therefore, must be deemed to be “located” in Minnesota for purposes of its credit card program, the Court concluded:

The congressional debates surrounding the enactment of § 30 were conducted on the assumption that a national bank was “located” for purposes of the section in the State named in its organization certificate. [Cite omitted.] Omaha Bank cannot be deprived of this location merely because it is extending credit to residents of a foreign state.

Marquette, 439 U.S. at 310, 99 S. Ct. at 546-547, 58 L.Ed.2d at 543.

Accordingly, we find Wisemans’ argument as to Arvest Bank Group Inc.’s stock holdings in State Bank to be without merit. It is well settled that a corporation is an entity separate from its stockholders. Shipp v. Bell & Ross Enterprises, Inc. 256 Ark. 89, 505 S.W.2d 509 (1974). Consequently, the domicile of the owner of corporate stock has no bearing on the corporation’s “location.”

Here, State Bank’s organization certificate recites its charter address as Tulsa, Oklahoma. Also, as was the case in Marquette, State Bank does not have any branch offices in the state of Arkansas. Therefore, under the rationale and holding in Marquette, we conclude that State Bank is “located” in the state designated in its organization certificate — Oklahoma. Thus, State Bank is permitted to charge interest “on any loan” at rates permissible under the law of Oklahoma. The Wisemans have not alleged or argued that the rates charged by State Bank are usurious under Oklahoma law. For the reasons above, we affirm the trial court’s holding that the Oklahoma interest rate provisions govern the parties’ transaction and their loan agreement is valid.

Corbin, J., not participating.

       Article 19, Section 13 of the Arkansas Constitution reads as follows:
      The maximum lawful rate of interest on any contract entered into after the effective date hereof cannot exceed five percent (5%) per annum above the Federal Reserve Discount Rate at the time of the contract.
      The parties stipulated that'on the date the contract was entered the Federal Reserve Discount Rate was three percent (3 %). Accordingly, the parties agree that a contract charging 13% in interest is usurious and void if governed by the law of Arkansas.

       Section 85 was originally enacted as § 30 of the National Bank Act of 1864, 13 Stat. 108. Section 30 was, in its pertinent parts, virtually identical with the current § 85.


author: Donald L. Corbin, Justice.

text:
    Ivy LINCOLN and Arkansas Power & Light Company v. ARKANSAS PUBLIC SERVICE COMMISSION
    92-1387
    854 S.W.2d 330
    Supreme Court of Arkansas
    Opinion delivered May 24, 1993

      Ivy Lincoln, for appellant Ivy Lincoln.

      Mitchell, Williams, Selig, Gates & Woodyard, by: E.B. Dillon, Jr., for appellant AP&L.

      Paul J. Ward, for the appellee Arkansas Public Service Commission.

      James N. Atkins, Oklahoma Gas & Electric Co.; and Chisenhall, Nestrud & Julian, P.A., by: Lawrence E. Chisenhall, Jr., for appellee Oklahoma Gas & Electric Co.
   Donald L. Corbin, Justice.

We granted Arkansas Power & Light Company’s petition to review the decision of the Arkansas Court of Appeals affirming the Arkansas Public Service Commission. Lincoln v. Arkansas Pub. Serv. Comm’n, 40 Ark. App. 27, 842 S.W.2d 51 (1992). The opinion of the court of appeals addressed a single issue — did the Arkansas Public Service Commission (PSC) err in dismissing a complaint for lack of jurisdiction to declare unconstitutional a statute it is required to enforce? Despite AP&L’s allegation to the contrary, that is the only issue we need address on review.

Ivy Lincoln filed a complaint with the Arkansas Public Service Commission (PSC) requesting the PSC to order all utilities furnishing electric service in the state to cease their maintenance of exclusive service territories by offering electric service without regard to any electric service territory boundaries. Lincoln recognized such a request was in violation of Ark. Code Ann. § 23-18-101 (1987), but claimed that section 23-18-101 should be declared unconstitutional as violative of our state constitution’s prohibition of monopolies, Ark. Const, art. 2, § 19. The PSC dismissed Lincoln’s complaint stating that it lacked jurisdiction to declare section 23-18-101 unconstitutional. Both Lincoln and Arkansas Power & Light Company (AP&L) requested rehearing. Lincoln argued the PSC had jurisdiction to decide his complaint pursuant to Ark. Code Ann. § 23-2-423(c)(4) (Supp. 1991). AP&L argued the PSC overlooked the primary focus of Lincoln’s complaint — which AP&L alleged to be an attack on the PSC’s allocation of service areas. AP&L claimed that the allocation of service areas is within the PSC’s exclusive jurisdiction, therefore the PSC should have determined that issue, and then addressed the constitutional issues incidental to the PSC’s basic regulatory jurisdiction. The PSC denied both requests for rehearing. The court of appeals affirmed the PSC’s actions, stating that Lincoln’s complaint was not a challenge to a specific service area allocation order of the PSC, but a challenge to a statute requiring the PSC to make such allocation and Lincoln could not obtain the relief he sought without the statute being repealed or declared unconstitutional. Thus, as the constitutional issue was the focus of Lincoln’s complaint, the court of appeals concluded there was no other issue to which the constitutional issue was incidental and the PSC was correct in dismissing for lack of jurisdiction on that basis.

In its supplemental brief to this court on petition for review, AP&L asserts four points of error in the court of appeals’ decision. We find no merit to AP&L’s arguments. We find very little room for improvement of the court of appeal’s opinion and affirm.

We consider AP&L’s first and last points of error together, as they are closely related. First, AP&L argues the court of appeals erred in holding the issue of constitutionality of section 23-18-101 as the essential, non-incidental element of the complaint. Last, AP&L claims that in order for Lincoln to be given the relief he requests, the PSC must engage in “legislative acts” such as cancelling or amending hundreds of Certificates of Convenience and Necessity (CCN), and awarding a new CCN to allow for a competing utility. These “legislative acts” are within the PSC’s exclusive jurisdiction and AP&L therefore claims that it is the constitutionality of section 23-18-101 that is incidental to the “legislative acts,” and not viceversa as the PSC and the court of appeals determined.

Quite simply, AP&L misreads Lincoln’s complaint. The complaint seeks the abolition of exclusive service territories by way of a declaration that such territories are unconstitutional. It seeks nothing more, despite AP&L’s vehement allegation to the contrary. As the complaint was written and filed with the PSC, the constitutional issue is the only issue to be decided. Whether any “legislative acts” are ultimately required to implement the relief requested in the complaint, if indeed such relief were granted, is irrelevant to the question of whether there is jurisdiction to determine the statute’s constitutionality. Both the PSC and the court of appeals were correct in concluding that the constitutional issue is the essential or non-incidental issue of this case.

As its second assignment of error to the court of appeals, AP&L contends the decision is contrary to a decision of this court, Oklahoma Gas & Elec. Co. v. Lankford, 278 Ark. 595, 648 S.W.2d 65 (1983). In Lankford, this court granted a writ prohibiting a circuit court from exercising jurisdiction over a class action ratepayers’ suit. The class sought, among “other ancillary” matters, a declaration that part of the statute allowing a utility to collect a rate increase under bond was unconstitutional. This court granted the writ of prohibition because the class had a full, adequate, and complete remedy at the administrative level, but it failed to exhaust that administrative remedy before seeking judicial relief in the circuit court. The class could have intervened in the proceedings before the PSC wherein the utility requested the challenged rate increase and presented all of its claims there rather than in circuit court. Lankford, 278 Ark. at 597, 648 S.W.2d at 66. Therefore, the plaintiffs in Lankford were not allowed to seek judgment on a constitutional issue in a trial court prior to exhausting their available administrative remedies. Id.

The situation presented in Lankford is not similar to the situation presented in the current case. Unlike the plaintiffs in Lankford, there is no administrative remedy available to Lincoln. There is simply no administrative procedure available in which he can seek a declaration from the PSC that a statute it is required to enforce is unconstitutional. If such a remedy were available, it would exist in violation of the doctrine of separation of powers.

Lankford is distinguishable from the present case in two respects. First, in Lankford, the plaintiffs had an administrative remedy available to them, Lincoln does not. Second, Lincoln asserts only one claim — a declaration of a statute’s constitutionality — while the plaintiffs in Lankford asserted other claims in addition to the constitutional one. Thus, after careful consideration of the two cases, it is evident that the holding of the court of appeals that Lincoln may seek declaratory judgment in circuit court does not conflict with Lankford.

As its third assignment of error, AP&L contends the court of appeals failed to recognize Lincoln’s reliance upon “other regulatory statutes administered by the PSC” and his prayer for relief that the PSC cancel any exclusive CCN issued over the last 50 years. The court of appeals did not fail to recognize any statutes upon which Lincoln relied. The court of appeals considered Lincoln’s argument as to Ark. Code Ann. §§ 23-2-304, 23-2-423, 23-3-114, 23-3-119, and 23-18-101 (1987 & Supp. 1991). Lincoln, 40 Ark. App. at 34-38, 842 S.W.2d at 53-57. AP&L does not cite a particular statute that was overlooked and we are unaware of any. In fact, the opinion gives a very careful and well-reasoned answer to every argument made by both Lincoln and AP&L. We have nothing to add to the court of appeals’ opinion in this respect. There is simply no merit to this contention.

There is also no merit to the contention that Lincoln’s complaint requested that all exclusive CCNs issued in the pst 50 years be terminated. The complaint did request that all exclusive service areas be abolished and that the statute requiring exclusive service areas be declared in violation of the constitutional prohibition of monopolies. If, in order to grant the complaint’s request, it is necessary to terminate all CCNs, that is an issue that may be developed at the trial court level. However, such action in cancellation of the CCNs is not a direct request of the complaint. This argument is essentially the same as the first argument AP&L made regarding the “legislative acts” being necessary to achieve the requested relief. As we have disposed of this argument previously, we do not address it any further here.

Lincoln asserts a claim founded solely on a state constitutional right to be free from a monopolistic market in the supply and demand of electric service. Other jurisdictions have held that a claim asserted solely on a constitutional right is singularly situated in a judicial forum rather than an administrative forum, Downen v. Warner, 481 F.2d 642 (9th Cir. 1973),and that no administrative tribunal has authority to declare unconstitutional the act which it is called on to administer, Buckeye Indus. v. Secretary of Labor, 587 F.2d 231 (5th Cir. 1979); First Bank of Buffalo v. Conrad, 350 N.W.2d 580 (N.D. 1984). In fact, the Supreme Court has stated that adjudication of the constitutionality of congressional enactments has generally been thought to be beyond the jurisdiction of administrative agencies. Johnson v. Robison, 415 U.S. 361 (1974). We agree with such holdings as they follow the doctrine of separation of powers. Therefore, we hold that while an administrative agency is vested with quasi-judicial powers to determine some incidental questions of law, and while that agency receives great deference from judicial forums in its areas of exclusive jurisdiction, issues based solely on constitutional claims are not within the agency’s jurisdiction.

The decision of the Arkansas Court of Appeals is affirmed.

Hays, J., not participating.


author: Robert L. Brown, Justice. Steele Hays, Justice,

text:
    Teresa A. REIS v. Hugh L. YATES
    92-1454
    854 S.W.2d 335
    Supreme Court of Arkansas
    Opinion delivered May 24, 1993

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Beverly A. Rowlett, for appellant.

      Lane, Muse, Arman & Pullen, by: Donald C. Pullen, for appellee.
   Robert L. Brown, Justice.

The appellant, Teresa A. Reis, appeals an order for a new trial entered eighty-one days after a motion for new trial was filed. We hold that the circuit court had lost jurisdiction by the time it entered its order, and we reverse and remand.

The appellee, Hugh L. Yates, filed suit for damages against the appellant, Teresa A. Reis, and a trial on the matter was held in the Garland County Circuit Court. The jury found in favor of Yates and awarded damages in the amount of $3,000. A judgment reflecting the verdict was entered on June 26, 1992.

On June 29, 1992, Yates filed a motion for a new trial pursuant to Ark. R. Civ. P. 59(a)(5) and (6) on the grounds that the verdict was contrary to the preponderance of the evidence and the law and that the jury erred in the assessment of the amount of recovery. On that same date, the circuit court mailed to the parties a notice of hearing on the motion, which was scheduled for September 8, 1992.

On September 18, 1992, the circuit court entered its order directing a new trial. In its order, the court acknowledged that under Ark. R. App. P. 4(c) if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the 30th day. Nevertheless, the court asserted that it had continuing jurisdiction under Ark. R. Civ. P. 60(b) to modify or set aside an order within 90 days “ [t]o correct any error or mistake or to prevent the miscarriage of justice.” To allow the jury verdict to stand unamended, the court declared, “would clearly be a miscarriage of justice.” The court further acknowledged that the failure to obtain a ruling on the motion within thirty days “was due to an oversight or omission.”

The sole point raised by appellant Reis on appeal is that the circuit court lacked jurisdiction to order a new trial. We agree. Reis argues, as the circuit court concedes, that because Yates filed a motion for new trial on June 29,1992, and the circuit court made no ruling within 30 days, the motion was deemed denied on July 29, 1992, under Ark. R. App. P. 4(c). Reis then contends that the 30-day deadline for Yates to file a notice of appeal after the denial date of July 29, 1992, occurred on August 28, 1992, under Ark. R. App. P. 4(d). Yates counters that the circuit court retained jurisdiction pursuant to Ark. R. Civ. P. 60(b) and under Rule 60(b) authority appropriately ordered a new trial on September 18, 1992.

This precise question was considered by this court in Phillips'/. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991). There, the circuit court entered an order granting a new trial forty-four days after the filing of a motion for a new trial pursuant to Ark. R. Civ. P.59. We reversed the court’s order on jurisdictional grounds and observed: “Rule 4(c) is clear that failure to act within thirty days will be deemed a denial.” 305 Ark. at 366, 807 S.W.2d at 924. We then held that the failure to act within the 30-day period results in loss of jurisdiction in the circuit court to consider the motion. We next addressed the Rule 60(b) alternative:

Nor does ARCP Rule 60(b) invest the trial court with jurisdiction to act on a Rule 59 motion beyond the thirty day period. Rule 60(a) does grant authority in the trial court to act on its own motion to correct clerical errors and mistakes. Rule 60(b) then provides ninety days in which the trial court may, on its motion or any party’s motion, correct the error or “prevent the miscarriage of justice.” [Emphasis ours.] The reference to certain miscarriages of justice in Rule 60(b) is a reference to those clerical errors or mistakes described in Rule 60(a).. . .Rule 60 generally governs relief for mistakes and errors and fraud in obtaining the judgment, which are distinct and apart from those grounds substantially affecting the material rights of a party set out in Rule 59.

305 Ark. at 367-368, 807 S.W.2d at 925.

We ratified our holding in Phillips v. Jacobs, supra, that the trial judge loses jurisdiction of the case by not acting on a motion for new trial within 30 days of filing in two later cases: Wal-Mart Stores, Inc. v. Isely, 308 Ark. 342, 823 S.W.2d 902 (1992) and Arkansas State Highway Commission v. Ayres, 311 Ark. 212, 842 S.W.2d 853 (1992). As this issue has been clearly decided, we reverse and remand for an order consistent with the opinion.

Reversed and remanded.

Steele Hays, Justice,

dissenting. I have expressed my views in dissent in Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991). When a question of law is firmly settled, even by division, further dissent seems pointless. However, with all due respect to the majority, I believe so strongly the inherent and time-honored jurisdiction of trial courts to modify their judgments under Ark. R. Civ. P. 60(b) is not lost simply for the lack of a timely notice of appeal under Ark. R. App. P. 4(c), that I will continue to say so. If the failure to file a notice of appeal in accordance with Rule 4(c) deprives the trial court of jurisdiction to act under Rule 60(b), why is that not also true when no notice of appeal is filed in accordance with Rule 4(a)?


author: Robert L. Brown, Justice.

text:
    Frances WATSON v. STATE of Arkansas
    CR 92-1251
    854 S.W.2d 332
    Supreme Court of Arkansas
    Opinion delivered May 24, 1993

      McCullough Law Firm, by: R.S. McCullough and Rita F. Bailey, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Frances Watson, appeals her conviction for two counts of endangering the welfare of a minor under Ark. Code Ann. § 5-27-203 (1987) and her sentence of six years on each count. She raises four points on appeal. In each instance, however, she has failed to comply with Rule 4-2 of the Supreme Court Rules, formerly Rule 9. We affirm the convictions and sentences on the basis of Rule 4-2.

On September 24,1988, there was a fire in the home of the appellant in Little Rock. At the time of the fire, two minor children — Anthony Scott and Daniel Toric — were locked in the appellant’s attic. Anthony Scott died in the fire, while Daniel Toric was rescued by Rita Watson, the appellant’s daughter. Toric suffered smoke inhalation.

The appellant was subsequently charged with two counts of endangering the welfare of the minors under Ark. Code Ann. § 5-27-203. Prior to trial, she moved to dismiss the charges on the basis that she was not the parent or legally charged with care of the children and that § 5-27-203 contemplates that status for a violation to occur. Following a hearing, the circuit court denied the motion.

At the trial of this matter, which covered four days, the appellant reiterated that she was neither a parent nor legally responsible for the two children. She said that she simply took the children in as a favor to their respective natural mothers.

Rita Watson, the appellant’s daughter, was called as a witness by the state, but she refused to testify, invoking her Fifth Amendment rights. The circuit court then declared her to be unavailable. She had given a previous statement to a Little Rock police detective, and that statement was read to the jury.

At the close of all evidence, the jury was instructed that the state had to prove that the appellant was the “person charged with the supervision” of the two minors and had purposely deserted them, thereby creating a substantial risk of death or serious physical injury to them.

The jury found the appellant guilty, and she was sentenced to six years on each count.

For her first point, the appellant urges that it was error for the trial judge to deny her motion to dismiss raised prior to trial and her later motions to dismiss made at trial because she did not fall under the terms of § 5-27-203. The appellant, however, only abstracted her first motion to dismiss which was denied before the trial began. In that motion, she did not argue that the charges against her did not state a criminal offense. Rather, she contended that she was not legally responsible for the two minors and did not endanger their lives.

There is no provision in our law permitting a motion to dismiss before the State has had an opportunity to prove its case, and we underscored that point in an earlier appeal taken in this case. See State v. Watson, 307 Ark. 333, 820 S.W.2d 59 (1991) ; see also Hardcastle v. State, 25 Ark. App. 157, 755 S.W.2d 228 (1988). Furthermore, without an abstract of the motions, to dismiss made at trial, we cannot determine the arguments made or the trial judge’s ruling. That information is vital to a decision on this point, and it is not before us. If such motions were not made, then it is axiomatic that the issue is not preserved for our review. See, e.g., Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992).

Secondly, the appellant argues that the instruction given on the criminal offense is not a correct statement of the law. Yet she only abstracts part of the instruction given. Moreover, she fails to abstract for our perusal arguments by counsel on this point, any proffer of a substituted instruction, and the ruling on the motions by the trial judge. As a consequence, we are also left in the dark on this point. If no proffer of a substituted instruction was made, that too is fatal to the appellant’s ability to raise the issue on appeal. Kelley v. Medlin, 309 Ark. 146, 827 S.W.2d 655 (1992) .

Thirdly, the appellant argues that admitting into evidence a taped statement of her daughter, Rita Watson, taken by a Little Rock police detective was error. Rita Watson invoked the Fifth Amendment at the trial, and the issue was whether the prior statement could be used because of her “unavailability.” No ruling by the trial judge on this point is abstracted, though the taped statement is. Indeed, the abstract reflects that the judge was undecided on the question. Without the trial judge’s ruling, we have no basis for a decision. And if no ruling was obtained, the appellant has waived the argument. Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987).

For her final point, the appellant argues that the prosecutor “personalized” her closing argument to the jury. There is no abstract of the prosecutor’s closing argument. The appellant does sprinkle several of the prosecutor’s statements with which she took umbrage throughout the argument portion of the brief. But this is not sufficient. We have said that scattering transcript references throughout an argument is not a substitute for a proper abstract. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980).

We hold, in light of the above, that the appellant’s abstract is flagrantly deficient, and we decline to address her arguments due to her failure to comply with Rule 4-2(a) (6) of the Supreme Court Rules. See D.J. v. State, 308 Ark. 37, 821 S.W.2d 782 (1992); Harrison v. State, 300 Ark. 439, 779 S.W.2d 536 (1989); Roberts v. State, 288 Ark. 640, 707 S.W.2d 324 (1986) (per curiam). We emphasized in Kitchen v. State, supra, the virtual impossibility of having seven judges read the one record filed in connection with an appeal. Accordingly, we are confined in our review to what is abstracted in the briefs, and we will not explore the record for prejudicial error, except in death or life imprisonment cases where a motion, objection, or request on the point at issue was made before the trial judge. See S. Ct. R. 4-3(h), formerly S. Ct. R. 11(f). The conviction and sentence are affirmed.

Affirmed.


author: Per Curiam.

text:
    Jerry C. JOHNSON v. STATE of Arkansas
    93-68
    854 S.W.2d 336
    Supreme Court of Arkansas
    Opinion delivered May 25, 1993

      William R. Simpson, Jr., Public Defender, by: Timothy A. Boozer, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Clementine Infante, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant Jerry Johnson was charged with three separate occasions of misconduct. All charges were tried on October 2,1992 and in all cases the appellant was adjudicated a delinquent. He was sentenced to indefinite probation, and a psychological evaluation was ordered as well as periodic drug screening.

Pursuant to Anders v. California, 386 U.S. 738 (1967), the appellant’s counsel has filed a motion to be relieved and a brief stating there is no merit to the appeal. The appellant was notified of his rights to file a pro se brief within thirty days. See Rules of the Supreme Court and Court of Appeals, Rule 20(j). He did not file a brief. The State concurs that the appeal has no merit.

We agree with the appellant’s counsel and the state that the case is without merit in some regard, but find that in case no. J92-1182, where the appellant was adjudicated a delinquent on a charge of loitering, the appellant’s request to have the charge dismissed because of failure of proof should have been granted. Detective Sergeant John Aquilino testified that he saw the appellant waving a gun in an area considered to be a high narcotics traffic area. The firearm was subsequently determined to be a pellet gun. When the appellant was ordered to drop the gun, he did so. He was searched and no contraband was found. There was evidence that the appellant identified himself to the officers and said that he was walking through the area. Ark. Code Ann. § 5-71-213(a)(l), provides that a person commits the offense of loitering if he lingers or remains or prowls in a public place or the premises of another without apparent reason and under circumstances that warrant alarm or concern for the safety of persons or property in the vicinity and, upon inquiry by a law enforcement officer, refuses to identify himself and give a reasonably credible account of his presence and purpose. The defense argued that since the appellant identified himself, he could not be found guilty of violating Ark. Code Ann. § 5-71-213(a)(1). However, the trial court agreed with the state that although the appellant had identified himself to the police officers, the statute requires that a person must identify himself and give a reasonably credible account of his presence and purpose. We hold that failing to identify oneself is a separate element of the offense of loitering. That element was not proven in this case. Therefore, the adjudication of delinquency in case no. J92-1182 must be reversed.

The defense made a hearsay objection when the police officer began to testify, “We had received information from a reliable confidential informant. . . .” The state stated they would not offer the statement for the truth of the matter asserted. Anything the informant told the police was not entered into evidence and there is no demonstration of any prejudice to the appellant.

In case no. J92-241 the appellant was adjudicated a delinquent on charges of fleeing and loitering. The defense moved to dismiss the charges for insufficient evidence. A patrolman testified that he received a call complaining of loiterers on December 26, 1991. When he arrived the appellant was standing by a “no loitering” sign on a tree in front of a house. The resident had called in numerous complaints about children loitering in front of her house selling narcotics. There was testimony that she was afraid that the drug task force would condemn her house because of the problem. The officer was called again at 12:10 a.m. on December 27,1991. Again the appellant was there and when the police officer approached, the appellant ran away. The patrolman gave chase and apprehended the appellant and a friend. When he returned to the house he found a pistol lying on the ground where the appellant and his friend were.

The patrolman’s testimony offered substantial evidence to find that the appellant was lingering or remaining on the premises of another without apparent reason and under circumstances that warrant alarm and without giving a reasonably credible account of his presence and purpose. See Ark. Code Ann. § 5-71-213(a)(1). Ark. Code Ann. § 5-54-125 (1987), provides that a person is guilty of fleeing if he unlawfully flees on foot or by means of a vehicle or the conveyance from duly authorized law enforcement officers knowing that his immediate arrest or detention was being attempted. The appellant admitted that he saw the police officer coming around the corner and the policeman testified that the appellant and his friend ran away from him. That proof provides substantial evidence of fleeing.

The defense also objected when the police officer testified that the resident of the house complained about the children loitering in front of her house and was scared that her house would be condemned. The court was correct in admitting the testimony of the police officer since it was not admitted to show the truth of the statement but was offered to show what information the police acted upon. See Jones v. State, 15 Ark. App. 283, 692 S.W.2d 775 (1985).

In case no. J92-593 the appellant was found a delinquent on charges of theft by receiving and fleeing. A police officer testified that on October 30,1991, he saw a vehicle, which had been reported stolen, coming towards him on a street and suddenly start backing up over halfway down a block. The policeman pulled in behind the car and turned on the blue lights and siren. The stolen car continued down a block and the driver and his passenger left the vehicle through the passenger’s side and fled on foot. The patrolman later determined the driver to be Jerry Johnson. Ark. Code Ann. § 5-36-106 (1987), provides that a person commits theft by receiving if he receives, retains or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe that it was stolen. The state offered proof that the appellant was driving the vehicle and that the vehicle showed indications that it was stolen. The steering column was punched out, the passenger window was broken, and the car had no license plate. There was also testimony that the appellant did not have the permission of the owner of the car to be in possession of the car. Upon being pursued by the police car the appellant exited the stolen car, and continued to run for at least a block. That testimony sustains adjudications of delinquency for both theft by receiving and fleeing.

There was an objection by the defense as to the testimony concerning events taking place on October 30, 1991, because the original charging petition alleged that the theft by receiving occurred on October 27,1991. That date was amended by the state to November 10,1991. The state then moved at trial to amend the petition dates again and the defense complained that they did not know what to defend against. The state explained that the date of October 27 on the first charging petition was a mistake since the date of the incident was October 30. It was changed to November 10 because that was the date that the juvenile was apprehended. The state argued that, although the date is a necessary element, the events were the most crucial element and that the defendant was on notice to the incident rather than a specific date. The police report of the alleged offense was dated October 30. The defense attorney declined the court’s offer of additional time to confer with his client but stood by his objection. The trial court held that the state would be allowed to amend the charging petition, noting that the defense would not change simply because of the amended date. The appellant has shown no prejudice caused by the amendment.

The defense also obj ected to the relevancy of questions by the state when cross-examining the appellant as to his knowledge of an area of town a couple of blocks from the alleged incident. The defense made a relevancy objection again when the state asked the appellant if he had any friends that were a couple of years older than he was. The court asked him to rephrase the question. The state said that it would demonstrate the relevancy in rebuttal; however, there was no rebuttal. The trial judge determined that the appellant’s answer to the question was relevant and could lead to information about the probability of the appellant being in the area. Although it is not clear what the state was attempting to establish, it is clear that the appellant was not prejudiced by the questioning.

From a review of the record and briefs before this court, we find the appeal to be without merit except in the instance noted. Accordingly, counsel’s motion to be relieved is granted and the judgment is affirmed in part and reversed and dismissed in part.

Affirmed in part and reversed and dismissed in part.


text:
    Ron PARRISH and Rose Parrish v. STATE of Arkansas
    CR 93-458
    853 S.W.2d 284
    Supreme Court of Arkansas
    Opinion delivered May 24, 1993

      Jon Alan Williams, for appellant.
    No response.
   Per Curiam.

The Clerk of the Court refused to docket this case when the record was presented. Appellants, by their attorney, Jon A. Williams, have filed a motion for a Rule on the Clerk. The motion contends that the record was timely filed. It was not timely filed, and we deny the motion.

It is an attorney’s duty to timely file the record. In this case the record was late because one of the orders of extension was not entered before the period for filing the record had expired. See Ark. R. App. P. 5. In addition, the record was tendered more than seven months after the entry of the judgment. See Ark. R. App. P. 5(b). If the attorney will concede by affidavit that it was his fault that the record was not timely filed, or if other good cause is shown, then the motion will be granted.


author: Jack Holt, Jr., Chief Justice. Steele Hays, Justice,

text:
    David A. LUPO, M.D. v. Hon. John LINEBERGER, Circuit Judge
    92-1168
    855 S.W.2d 293
    Supreme Court of Arkansas
    Opinion delivered June 1, 1993

      Wright, Lindsey & Jennings, for appellant.

      Peter A. Miller, for appellee.
   Jack Holt, Jr., Chief Justice.

This is a petition for a writ of prohibition or writ of certiorari to prevent the Jefferson County Circuit Court, specifically the Honorable John Lineberger, sitting on special assignment, from ordering Dr. David A. Lupo to testify as a witness in a deposition in the matter of William Rodgers, individually and as administrator of the Estate of Patricia Rodgers v. Dr. Robert Teryl Brooks, No. 91-439-2-3. In response to the petition, we issued a temporary stay of all proceedings, including discovery, pending the submission of briefs on the main issue and the question of the propriety of a writ of certiorari. See Lupo v. Lineberger, 311 Ark. 80, 841 S.W.2d 158 (1992).

The parties have responded by submitting briefs on the appropriateness of both writs of prohibition and certiorari as well as on the main issue; however, we hold that the petitioner is not entitled to relief under either writ arid deny his application in all particulars.

WRIT OF PROHIBITION

In Webb v. Harrison, 261 Ark. 279, 547 S.W.2d 748 (1977), we reiterated our general position that a writ of prohibition is a discretionary writ and is only proper when the trial court has no jurisdiction over the person of the petitioner, is clearly warranted, and there are no disputed facts. In Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981), where the court’s order in question was essentially a pretrial discovery order, discretionary, and within our Rules of Civil Procedure, Ark. R. Civ. P. 26(b)(1), we cited Webb with approval. Yet we altered Webb’s language somewhat and granted a writ of prohibition stating that such a procedure was proper in extraordinary cases. In support of our decision, we noted that the California Supreme Court had used writs of prohibition to review interim orders in discovery matters which ordinarily would not be reviewed until after the case was tried and appealed. Ocean Side Union School District v. Superior Court, 23 Cal. Rptr. 375, 373 P.2d 439 (1962).

In Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987), we were confronted with a question of whether a writ of prohibition should issue. We correctly granted the writ as the trial court did not have jurisdiction over a workers’ compensation matter, although this was not our holding. Instead, we utilized some rather loose language in declaring that the writ was warranted to prevent untold time and expense, as well as unnecessary grief to the parties. We should have simply said writs of prohibition lie when the court is without jurisdiction and has clearly exceeded its authority.

Later, in Duncan v. Cole, 302 Ark. 60, 786 S.W.2d 587 (1990) , we concluded that a discovery order was not the proper subject for a writ of prohibition and commented further, “We regard the Curtis decision as unique in that the demonstration of irreparable harm was compelling.” In a concurring opinion, Justices Glaze and Newbern agreed with the majority’s results but made specific note “that the majority should have completed this job and overruled Curtis.” In Ridenhower v. Erwin, 303 Ark. 647, 799 S.W.2d 535 (1990) we declared, “it would be a mistake to read Curtis as a general precedent for the issuance of writs of prohibition in discovery disputes.”

We also labored over the Curtis issue in Forrest City Machine Works, Inc. v. Erwin, 304 Ark. 321, 802 S.W.2d 140 (1991) and explained:

Petitioner does argue that in the case of Curtis v. Partain, 272 Ark. 400, 614 S. W.2d 671 (1981), we granted a writ of prohibition when the trial court had personal and subject matter jurisdiction, and we did not hold there was an inadequacy in the remedy of appeal. It asks us to do the same again. Curtis was an anomaly involving an issue of first impression which we resolved “for the benefit of the trial courts.” It is doubtful that we will ever again follow the procedure in Curtis. We limit that case to its facts.

As we are confronted with Curtis once again, we take this opportunity to overrule Curtis and retreat from the overreaching language in Fore to our earlier posture on writs of prohibition, as most recently stated in Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992):

Prohibition will not lie unless the trial court is clearly without jurisdiction or has acted without authority and the petitioner is unquestionably entitled to such a relief. The purpose of the writ is to prevent a court from exercising a power not authorized by law when there is no other adequate remedy by appeal or otherwise. It is never issued to prohibit an inferior court from erroneously exercising its jurisdiction, but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction.

The taking of Dr. Lupo’s deposition pursuant to Ark. R. Civ. P. 26(a) falls within our discovery procedures. In this regard our rules provide:

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise under subdivision (c) of this rule, the frequency of use of these methods is not limited.

Since issues of discovery are squarely under the trial court’s jurisdiction, it necessarily follows that a writ of prohibition is not the solution to this discovery problem. For this reason, Dr. Lupo’s petition for writ of prohibition is denied.

WRIT OF CERTIORARI

Nor is the issuance of a writ of certiorari appropriate under the factual circumstances of this case. Certiorari lies to correct proceedings erroneous on the face of the record where there is no other adequate remedy and is available to us in exercise of superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided. State v. Nelson and Barry Petroleum Co., 246 Ark. 210, 438 S.W.2d 33 (1969). Sexton v. Supreme Court, 297 Ark. 154A, 761 S.W.2d 602 (1988); Bridges v. Arkansas Motor Coaches, 256 Ark. 1054, 511 S.W.2d 651 (1974). However, certiorari may only be resorted to in cases where an excess of jurisdiction is apparent on the face of the record. Nelson and Barry Petroleum Co., supra. From our inspection of the trial court’s proceedings, we do not see any irregularities for which there is no other adequate remedy which would require the issuance of a writ.

Linder Ark. R. Civ. P. 26(a), a party has an absolute right to take a deposition. If the deponent is asked questions that are inappropriate or unreasonable, he has a right to refuse to answer the question and request a protective order from the trial court to prevent the deposer from asking further questions along that line. More particularly, Ark. R. Civ. P. 26(c) provides:

(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or other commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any person or persons provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

Specifically, Ark. R. Civ. P. 26(c)(4) is available and has been available at all times as an adequate remedy to Dr. Lupo for matters that should not be inquired into. Granted, the trial court, through its written order and statements made in open court, gave the parties apparently inconsistent guidelines as to what it considered to be acceptable or unacceptable deposition questions; however, the giving of these guidelines or setting of these parameters does not preclude the taking of Lupo’s deposition or take away from the trial court’s jurisdiction to sit and pass judgment on each one of the issues raised during discovery. Dr. Lupo has the option to return to the trial court and ask for a protective order if he is asked a question during the deposition which he considers unacceptable. Ark. R. Civ. P. 26(c).

A writ of certiorari is a remedy to quash irregular proceedings “but only for errors apparent on the face of the record; not to look beyond the record to ascertain the actual merits of a controversy or to control discretion or to review of finding upon facts.” (Citations omitted.) Hardin, Comm’r of Revenues v. Norsworthy, 204 Ark. 943, 165 S.W.2d 609 (1942). Under the circumstances and facts of this case, we find that there is no such patent error.

Since the petitions for writs of prohibition or certiorari do not properly lie, we do not address the main issues in controversy.

Petition denied.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I could agree with the majority if this were a discovery dispute between litigants. But petitioner is not a party and is without the recourse otherwise available, a circumstance the majority ignores. Consequently he is confronted with the distasteful prospect of facing contempt charges for refusing to answer questions involving his opinions as a physician. That, I believe, provides the extraordinary circumstances appropriate to prohibition or certiorari.

Respondent insists he does not propose to obtain expert testimony from Dr. Lupo. “The crux of the case,” he tells us, is that Dr. Lupo “is not being forced to provide expert testimony against his will. . . . He is merely another person who is being deposed because he has knowledge concerning matters involved in the case. [Respondent] is merely seeking to discover what that knowledge is.” Respondent’s brief, page 14.

That assurance is reenforced elsewhere:

[Respondent] will concede that it would be error for Judge Lineberger to compel Dr. Lupo to testify as an expert against his will at trial. However, Judge Lineberger’s order does not do this. It does not require Dr. Lupo to divulge any specialized knowledge to assist the trier of fact. A.R.E. 702. All it requires is that Dr. Lupo submit to a discovery deposition as an ordinary witness and answer questions based on his first-hand knowledge, experience and past statements. [Emphasis in original.]

Id. at 21.

Yet it is all too apparent from oral argument and respondent’s brief that the “knowledge” respondent hopes to discover is essentially Dr. Lupo’s professional judgment and opinion as to the appropriate standard of care for urologists in the community, whether certain medical texts are “learned treatises” in their field, and opinions he may have formed concerning the deceased patient not protected by the scope of peer review. But these are patently areas of expert testimony and not obtainable by compulsion. Ark. R. Evid. 706.

Nor can I see anything to be gained by overruling Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981). That decision, issued unanimously, was expressly for the guidance of the trial bench when privileged information is sought by discovery. We have made it clear the case is not to be read broadly for the issuánce of writs of prohibition in discovery disputes. Ridenhower v. Erwin, 303 Ark. 647, 799 S.W.2d 535 (1990). And we have said as to prohibition that Curtis v. Partain is “limited to its facts.” Forrest City Machine Works, Inc. v. Erwin, 304 Ark. 321, 802 S.W.2d 140 (1991). Why not leave it at that. There are principles of law announced in that opinion “of general interest to all trial courts” that I believe are sound today. To overrule Partain needlessly undermines those pronouncements.


text:
    Lindell HILL v. Hon. John S. PATTERSON, Circuit Judge, James D. Hepp, Administrator of the Estate of Jerry Don Hepp, Deceased and James D. Hepp and Odean Hepp, Deceased
    92-1286
    855 S.W.2d 297
    Supreme Court of Arkansas
    Opinion delivered June 1, 1993

      Hardin, Jesson, Dawson & Terry, by: Robert M. Honea, for petitioner.

      David H. McCormick, for respondents.
   Steele Hays, Justice.

This is an original action for a writ of prohibition to prevent the circuit court from asserting jurisdiction over claims belonging exclusively to the Arkansas Worker’s Compensation Commission. We agree with the petitioner and grant the writ.

The petitioner is Lindell Hill, a working partner in the firm of Combs Housemovers, a partnership consisting of Hill and his sister, Marie Combs. Respondents are the Honorable John S. Patterson, Circuit Judge, James D. Hepp, individually and as administrator of the estate of Jerry Don Hepp, deceased, and O’Dean Hepp, wife of James D. Hepp. Mr. and Mrs. Hepp are the parents of Jerry Don Hepp, deceased employee of Combs Housemovers.

On June 21,1991, Lindell Hill and Jerry Hepp were engaged in moving a house. Two other employees were assisting by driving two warning vehicles — one in front and one behind. Because the procession moved slowly they would stop on the shoulder periodically to permit other vehicles to pass. All three employees were subject to Hill’s supervisory authority.

Lindell Hill was driving the truck pulling the house. Hepp was a passenger. When the procession would stop, Hepp would direct traffic until the string of cars had passed and he had given an all clear signal to Hill. Hepp would then move between the truck and the trailer on which the house was situated, stepping over the tongue, and reenter the truck. During one of these stops, by unseen circumstances, Hepp was run over by the wheels of the vehicle on which the house was mounted, resulting in his death.

Respondents filed suit in circuit court for compensatory and punitive damages for the wrongful death of Jerry Hepp. The complaint alleged the death of Jerry Hepp was the result of negligence and willful and wanton conduct by Lindell Hill. By amendment the complaint alleged that Lindell Hill was acting as employer of Jerry Hepp and as an employee of Combs House-movers.

Petitioner’s motion for summary judgment was denied and this original action for prohibition followed. Petitioner argues that the exclusive remedy of the Arkansas Workers’ Compensation Act is a bar to the tort claims of the Hepps as a matter of law and that prohibition is the proper remedy. We agree with both points.

Petitioner relies on that section of the Arkansas Workers’ Compensation Act which provides that the rights and remedies granted to an employee on account of injury or death

. . . shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer or any principal, officer, director, stockholder, or partner acting in their capacity as an employer, on account of injury or death. . . .

Arkansas Code Ann. § ll-9-105(a) (1987).

Respondents defend the denial of summary judgment on two grounds: One, that by functioning both as employer and employee, Lindell Hill acquired a “dual persona” which rendered him liable in tort, and, two, that the death of Jerry Hepp was the result of an intentional tort by Lindell Hill, to which the exclusivity of Workers’ Compensation does not apply. Neither argument can be sustained.

Intentional Tort

While it is true that the intentional infliction of an injury upon an employee by an employer is an exception to the exclusive remedy provision of the Workers’ Compensation Act [Heskett v. Fisher Laundry & Cleaners Company, 217 Ark. 350, 230 S.W.2d 28 (1950)], that exception is not created by the bare allegation, as here, that the employee’s injury was the result of willful and wanton conduct by the employer. We have pointed out in several decisions that in order to escape § 11-9-105(a) the complaint must allege a deliberate act by the employer with a desire to bring about the consequences of the act. A mere allegation of willful or wanton conduct will not suffice. Griffin v. George’s, Inc., 267 Ark. 91, 589 S.W.2d 24 (1979). In Miller v. Ensco, Inc., 286 Ark. 158, 692 S.W.2d 615 (1985), we pointed out that “it is the nature of the acts complained of that determines the cause of action,” concluding that the complaint failed to allege facts

. . . that show the employer committed acts with an ‘actual, specific, and deliberate intent to . . . injure the employee,’ in the nature of an intentional act by an employer who assaults his employee. There were no facts alleged to show the appellee had a ‘desire’ to bring about the consequences of the acts or that the acts were premeditated with the specific intent to injure the appellant. . . .

The allegation in this case was that Lindell Hill began moving the truck at a time when he knew Jerry Hepp was attempting to move between the truck and the trailer, that by failing to wait until he was sure Jerry Hepp had safely passed between the two vehicles, his actions were willful and wanton in nature. This allegation falls considerably short of alleging facts sufficient to remove the case from the jurisdiction of the Worker’s Compensation Commission.

Dual Persona

Respondents also contend that their suit is not barred at law by Ark. Code Ann. § 11-9-105 (a) (1987) because they have sued Hill in his capacity as an employee and not as an employer, a cause of action recognized in Arkansas. King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959). But King v. Cardin involved the negligence of a fellow employee, not an employer, incurring liability under Ark. Code Ann. § 11-9-410 (1987) of the act. That case, which was narrowed by Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987), has little bearing on the case at bar. We are aware of no cases holding that a working partner incurs third party liability pursuant to § 11-9-410 because of active involvement in the operations of the business.

The dual persona doctrine has been recognized by this court in a recent decision — Thomas v. Valmac Industries, Inc., 306 Ark. 228, 812 S.W.2d 673 (1991). However, Thomas is clearly distinguishable in that the claim involved a corporation which later merged with the corporation by which the claimant was employed. In that particular context Thomas holds that under the dual persona doctrine such a claim is not barred by the exclusivity provision of the Workers’ Compensation Act.

Respondents cite Professor Larson:

An employer may become a third person, vulnerable to tort suit by an employee, if — and only if — he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person.

2A A. Larson, The Law of Workmen’s Compensation, § 72.81 (1990).

However, elsewhere Larson makes it clear that the dual persona doctrine is applicable in “exceptional situations” where the law has clearly recognized a duality of legal persons, a duality firmly entrenched in the common law. Id. § 72.81. Partnerships are almost universally excluded from that concept:

Except in Louisiana, a member of a partnership, even if he is a “working partner,” is still in law the employer of employees of the partnership and cannot be sued.

2A A. Larson, Larson on Workers’ Compensation, § 72.15.

As to working or managing partner, whether or not they are co-employees, they are also employers, and in that capacity have been accorded immunity.

Id. at § 72.24(c).

That a partnership is not an entity distinct from its members under Arkansas law is not subject to dispute. Ark. Code Ann. § 4-42-201(1) (1987); Pate v. Mentin, 13 Ark. App. 182, 681 S.W.2d 410 (1985). Cases from other jurisdictions are in accord. See e.g. Carlson v. Carlson, 346 N.W.2d 525 (Iowa 1984).

Prohibition

Where the encroachment on workers compensation jurisdiction is clear, we have not hesitated to hold writs of prohibition are clearly warranted. Campbell v. Waggoner, 235 Ark. 374, 360 S.W.2d 124 (1962); Fore v. Circuit Court of Izard County, 292 Ark. 13, 722 S.W.2d 840 (1987), and Cf. Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993). In other cases before us on appeal, we have held that circuit courts had no jurisdiction to address such claims. See Hagger, Administratrix v. Wortz Biscuit Co., 210 Ark. 318, 196 S.W.2d 1 (1946); Odom v. Arkansas Pipe & Scrap Material Co., 208 Ark. 678, 187 S.W.2d 320 (1945), and Young, Administrator, v. G. L. Tarlton, Contractor, Inc., 204 Ark. 283, 162 S.W.2d 477 (1942).

Writ of prohibition granted.