author: Tom Glaze, Justice,

text:
    SECOND BAPTIST CHURCH, for itself and on behalf of BUFFINGTON TOWERS LIMITED PARTNERSHIP v. LITTLE ROCK HISTORIC DISTRICT COMMISSION
    86-308
    732 S.W.2d 483
    Supreme Court of Arkansas
    Opinion delivered July 20, 1987

      Mitchell, Williams, Selig & Tucker, by: Jim Guy Tucker, Cynthia J. Davis, and Joe E. Madden, Jr., for appellant.

      MarkStodola, City Att’y, by: Thomas M. Carpenter, Asst. City Att’y, for appellee.

      Youngdahl & Youngdahl, P.A., by: Thomas H. McGowan, for amicus curiae, Quapaw Quarter Association.
   A. Watson Bell, Special Justice.

Appellant appeals from an Order of the Chancery Court affirming Appellee’s denial of Appellant’s Application for a Certificate of Appropriateness for the construction of a parking lot in the McArthur Park Historic District in downtown Little Rock.

For reversal, the Appellant argues that the Chancellor erred by (1) finding that the Appellee had the authority to reach the decision it did because neither the Historic District Act nor a Little Rock Municipal Ordinance allowed the Appellee to consider use, (2) finding that Appellee’s decision was not a denial of equal protection, and (3) finding that Appellee’s decision was not arbitrary and capricious. We disagree with Appellant’s contentions and affirm.

Appellant owns property in the 600 block of Rock Street in Little Rock, which is located within the McArthur Park Historic District and is bordered on the west by Cumberland Street and on the east by Rock Street. Appellant’s church is located adjacent to but outside of the District and one block south of the property.

In 1982, the Appellant voluntarily gave its parking lot to their development of Buffington Towers in order to achieve federal funding for the apartment complex from the Department of Housing and Urban Development. In August of 1983, the Appellant made application to the McArthur Park Historic District Commission for a Certificate of Appropriateness to use the subject property as a parking lot for the church. The application was denied. There was an appeal made on the record of that case to the Chancery Court of Pulaski County, and the decision of the Commission was affirmed. (Second Baptist Church v. Little Rock Historic District Commission, 83-3694, Pulaski County Chancery Court, Second Division). No appeal was taken from the Chancery decision.

In 1985, the church for itself and on behalf of Buffington Towers Limited Partnership, filed a new Application for Certificate of Appropriateness for a noncommercial, private parking lot on the property. Buffington Towers had entered into a contract to purchase the property from the church. After an evidentiary hearing, the Commission denied the application on September 5, 1985.

The decision of the Commission was appealed to the Chancery Court of Pulaski County, Third Division, pursuant to Ark. Stat. Ann. §19-5009 (Repl. 1980). After a hearing, the Court affirmed the Commission’s decision and dismissed the church’s appeal.

Appellant first argues that the Trial Court erred in finding that the decision of the Commission was within its authority alleging that neither the Historic District Act nor Little Rock Municipal Ordinance No. 14 grant the Commission the authority to consider proposed use. Our review herein requires us to pass for the first time on the legislature’s enactment of the Historic District Act, Ark. Stat. Ann. § 19-5001, et seq. (Repl. 1980). With the passage of the Historic District Act, the Arkansas Legislature allowed qualified municipalities to take steps to protect places of historic interest within their boundaries. Ark. Stat. Ann. § 19-5002 (Repl. 1980). It authorizes the use of historic districts to promote the educational, cultural and economic welfare of a community which has been deemed a legitimate use of the police powers by numerous state and federal courts. See e.g., Maher v. City of New Orleans, 516 F.2d 1051, 1058-59 (5th Cir. 1975); Opinion of the Justices, 128 N.E.2d 557, 562 (1955); City of Sanie Fe v. Gamble-Skogmo, Inc. 73 N.M. 410, 389 P.2d 13 (1964); Town of Deering v. Tibbets, 105 N.H. 481, 202 A.2d 232, 234 (1964); Lafayette Park Baptist Church v. Scott, 553 S.W.2d 856 (1977).

In order to avail itself of the Act, a municipality must take measures to form an Historic District Commission to act upon requests for Certificates of Appropriateness to build, destroy or modify structures within an historic district. Ark. Stat. Ann. § 19-5003 (Repl. 1980). The Act includes an absolute prohibition against property owners taking any of these steps before obtaining a certificate. Ark. Stat. Ann. § 19-5005 (Repl. 1980).

Appellant argues that pursuant to Ark. Stat. Ann. § 19-5005 (Repl. 1980), the legislative intent of the Act was to limit the authority of the Commission to matters dealing with exterior architectural features only, and does not permit the Commission to consider the proposed use in determining whether to approve or deny an application. The Appellant’s argument ignores, when read as a whole, Ark. Stat. Ann. § 19-5006 (Repl. 1980), which states:

Commission not to be concerned with interior architectural features. — In its deliberations under this Act, the Commission shall not consider interior arrangement or use and shall take no action under this Act except for the purpose of preventing the construction, reconstruction, alteration, moving or demolition of buildings, structures or appurtenant fixtures, in the Historic District obviously incongruous with the historic aspects of the District. (Emphasis added)

In construing the legislative intent of the Act, we must consider the plain wording of the Act and must look to the legislative objectives in applying the legislation. Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S.W.2d 391 (1985). It is quite clear that an Historic District Commission may consider use only for the purpose of denying a certificate and, while the Commission does not have the authority to grant certain uses of property, it does have the authority to deny certain uses if those uses are “obviously incongruous with the historic aspects of the District.” Here, the Commission found that construction of the parking lot as proposed in the Appellant’s application would be totally incongruous with the historic aspects of the District, especially in view of the proposed location of the parking lot on a fringe or border area of the District. We cannot say that this finding by the Commission was outside of the scope of what the legislature intended with the passage of the Historic District Act. In fact, we believe that the statute grants the Commission the authority to make the precise finding that it did in this case. The General Assembly declared that the purpose of the Act

. . .is to promote the educational, cultural, economic and general welfare of the public through the preservation and protection of. . . sites, places and districts of historic interest. . . through the development of appropriate settings for “historical” buildings, places and districts. Ark. Stat. Ann. § 19-5002 (Repl. 1980)

Thus, an Historic District Commission may prohibit a particular use of property within a district in order to develop an appropriate setting for historical buildings if that use is obviously incongruous with the historic nature of the district. We believe that an Historic District Commission is given authority to preserve the district.

Tom Johnson, an architect who testified before the Commission, introduced several photographs and maps showing the Commission the number of parking lots in the area. He pointed out that approximately 50% of the land outside the District is surfaced parking. Johnson then quoted, from the criteria for meeting the National Register of Historic Places as follows:

. . .1 would like to tell you the National Register criteria for a Historic District, and I quote to you, “is a geographically defined area, urban or rural possession, and significant concentration linkage for continuity of site, building, structures, or objects united by past events or by plan or by physical development.”
And in evaluating the Historic District for National Register eligibility, “Parking lots are considered to be incompatible intrusions whereas vacant lots are not considered to detract from the history.” [Testimony of Tom Johnson (R. 70)] [Emphasis added]

Mr. Johnson’s testimony was credible evidence which supports the Commission’s finding that a parking lot at that particular location would be obviously incongruous with the historical aspects of the District.

Appellant next argues that the Commission denied it equal protection of law because it is not being allowed to build the subject parking lot. Discriminatory action by a governmental administrative body must have a rational basis in order to withstand an equal protection challenge. Milnot v. Arkansas State Board of Health, 388 F. Supp. 901 (E.D.Ark. 1975). Establishing that different applicants are treated differently does not prove the denial of equal protection. City of Sante Fe v. Gamble-Skogmo, Inc., 73 N.M. 1401, 389 P.2d 19 (1964). A sufficient explanation of different treatment to applicants will meet an equal protection challenge. Id. In this case, there was sufficient evidence presented to the Commission explaining why two other parking lot applications were approved and the one herein was not. The fact that the property in question is on a “fragile” boundary of the District distinguishes this application from the others, and the Appellant did not demonstrate a systematic course of conduct evidencing discrimination against nonresident landowners within the District. The record is silent with respect to any evidence that any landowner within the District had been permitted by the Commission to build a parking lot where a non-landowner had been denied on the same request. To establish purposeful discrimination, it must be shown that the decision makers selected a course of action in part because of its adverse effects on an identifiable group. Norcross v. Sneed, 573 F. Supp. 533 (W.D. Ark. 1983) and Massachusetts v. Feeney, 442 U.S. 256 (1979). Appellant’s assertion that although neither the statute nor the ordinance distinguish between residents and nonresidents of the District, there is substantial evidence of inherent prejudice by the Commission against property owners outside the District is not supported in the record. Even so, municipalities are permitted to impose restrictions on nonresidents if doing so would further a legitimate state interest. See, Arlington County Board v. Richards, 434 U.S. 5 (1977). We do not find that the Appellant has been singled out as the only group prohibited from building such a parking lot. The Commission’s decision was a valid exercise of a legitimate state interest.

Finally, the Appellant argues that the Commission’s decision was arbitrary and capricious. In zoning cases, the Chancellor does not conduct a de novo review, but rather determines if the municipality’s action is arbitrary and capricious. McMinn v. City of Little Rock, 275 Ark. 458, 631 S.W.2d 288 (1982). If there is a reasonable basis for the finding, the Chancellor should find the decision was not arbitrary and capricious. The standard of appellate review of a Chancellor’s finding that a City Zoning Board did not act arbitrary, capricious or unreasonable is whether it is clearly against the preponderance of the evidence. McMinn v. City of Little Rock, supra. The question before this Court is whether there is evidence in the record to support the Commission’s finding.

In viewing the totality of the evidence presented to the Commission, we cannot say that the Chancellor’s finding that the Commission’s action was not arbitrary, capricious and unreasonable was clearly against the preponderance of the evidence. In this case, the Commission took supporting evidence from both sides on the issue of whether the building of the subject parking lot at the particular location in question would be obviously incongruous with the historic aspects of the District. Based upon all of the evidentiary matters presented, the Commission found the parking lot impermissible. The Chancellor applied the proper standard of review as required by law and even if our judgment on the issue would differ from the Commission’s, we are compelled to reverse only if we find the Chancellor’s decision clearly against the preponderance of the evidence. Rule 52, Arkansas Rules of Civil Procedure. We do not and, thus, find the Appellant’s argument without merit.

In conclusion, we do not believe that the Commission exceeded its quasi-legislative authority in its finding that a parking lot at this particular location would be obviously incongruous with the historic aspects of the District, nor do we believe that the Appellant was denied equal protection of the law. The Chancellor’s finding that the Commission’s decision was not arbitrary or capricious is not clearly against the preponderance of the evidence presented before the Commission, and must be affirmed.

Affirmed.

Purtle and Glaze, JJ., dissent.

Hays and Newbern, JJ., not participating.

Tom Glaze, Justice,

dissenting. After today’s decision, the City of Little Rock will have two city planning commissions, not one, which will have the power to determine land use. Obviously, when those two commissions differ in the future on what uses the land within historic districts may be put, a conflict again will be ripe for more litigation similar to that posed here. The Little Rock City government — which represents the Historic Commission in this case — then will be placed in the ironic position of arguing the other side of this lawsuit, now argued by the Second Baptist Church. While the majority court refers to the “limited power” of the Historic Commission to consider use only when denying a certificate of appropriateness under the Historic Districts Act, that so-called limited power will prove most frustrating to the city when the Historic District Commission, in the future, disagrees with the city planning commission’s decision to put property within a historic district to a use with which the Historic Commission disagrees. Since this decision impacts municipalities and historic commissions elsewhere in the state, I submit the potential conflict I describe is inevitable.

Actually, my concern is not that conflicts or litigation will inevitably occur between city governments (planning commissions) and historic commissions. Rather, my point is that I find it difficult to believe the General Assembly, when it enacted the Historic Districts Act, had intended that our municipalities’ right to zone or to determine the use of properties within their corporate limits should in any way be shared or diminished. I believe a fair and reasonable interpretation of the Act bears out my position.

The two statutory provisions of the Act in issue here are Ark. Stat. Ann. §§ 19-5005 and -5006 (Repl. 1980). Those laws in relevant part provide:

§ 19-5005. No building or structure. . . shall be erected, altered, restored, moved, or demolished within an (sic) historic district until after an application for a certificate of appropriateness as to exterior architectural features has been submitted to and approved by the Commission . . . For purposes of this act [§§ 19-5001 — 5011] “exterior architectural features” shall include the architectural style, general design and general arrangement of the exterior of a structure, including the kind and texture of the building material and the type and style of all windows, doors, light fixtures, signs and other appurtenant fixtures. The style, material, size and location of outdoor advertising signs and bill posters within an (sic) historic district shall also be under the control of the Commission. (Emphasis supplied.)
§ 19-5006. [T]he commission shall not consider interior arrangement or use and shall take no action under this act except for the purpose of preventing the construction, reconstruction, alteration, restoration, moving or demolition of buildings, structures or appurtenant fixtures, in the Historic District obviously incongruous with the historic aspects of the District. (Emphasis supplied.)

In reading § 19-5006, it becomes immediately apparent that the General Assembly mandated that historic commissions shall not consider interior arrangements or use when taking action under the Act. Nevertheless, the Little Rock Historic District Commission ignores those plain words of proscription, and argues, quite imaginatively and obviously persuasively to this court, that the remaining language in § 19-5006 permits a historic commission to consider use only to prevent any construction that is incongruent with the historic aspects of a district. I am surprised the majority accepted such a suggestion of legislative intent.

One need only ask two questions to see the fallacy in the Historic Commission’s argument. If the Commission’s argument were true, why did the General Assembly, under § 19-5006, prohibit historic commissions from considering use at all? If the General Assembly intended historic commissions to have zoning powers over the use of property within a district, why didn’t it provide for it in the Act? Clearly, no express provision granting such power is contained in the Act. Knowing the General Assembly is well aware of how to provide such power leads me to one conclusion: It did not intend to grant it. To accept the Little Rock Historic District Commission’s interpretation of this legislation is like saying, “You shall not consider use, however, you may do so when you deem it necessary.”

I submit the correct interpretation of § 19-5006 can be understood only by considering it in light of the language in § 19-5005. Section 19-5005 provides “no building or structure” can be erected within a historic district until the commission approves an applicant’s request for a certificate of appropriateness “as to exterior architectural features.” Thus, in reading §§ 19-5005 and -5006 in harmony, the General Assembly expressly provided that a historic commission has power to approve the exterior architectural features of any building or structure to be erected in the district; it cannot consider interior arrangement or use when considering its action; except it may prevent any construction incongruous with the historic aspects of the district until the exterior architectural design of the construction is approved by the commission. Sections 19-5005 and -5006 expressly provide no more and no less than a historic commission’s authority to control the exterior design of structures within its district. This court’s decision to say otherwise can only be labeled judicial legislation.

Purtle, J., joins in this dissent.


source: Caselaw Access Project

author: John D. Eldridge III, Special Justice.

license: Public Domain

text:
    T.P. LEASING CORPORATION v. BAKER LEASING CORPORATION and GELCO CORPORATION
    86-235
    732 S.W.2d 480
    Supreme Court of Arkansas
    Opinion delivered July 20, 1987

      Davidson, Horne & Hollingsworth, A Professional Association, by: Thomas S. Stone and Robert J. Fuller, for appellant.

      House, Wallace & Jewell, P.A., by: Janice W. Vaughn, James R. Rhodes, John R. Clayton, and David Couch, for appellees.
   John D. Eldridge III, Special Justice.

Appellant, T. P. Leasing, contracted with appellee, Baker Leasing Corporation, the wholly owned subsidiary of appellee, Gelco Corporation, to lease from Baker certain tractors and trailers to be utilized in its business of hauling freight. The agreement was made in 1981, and by 1983 various problems had arisen between the parties to the contract. On November 19,1983, T. P. Leasing gave notice of termination of the lease. Thereafter, after further communication and increasing difficulties, Baker Leasing repossessed the trucks prior to the effective termination date established by the letter of termination from T. P. Leasing. T. P. Leasing initiated this litigation in the Circuit Court of Pulaski County claiming damages from both Baker and Gelco for interference with T. P.’s business expectations, conversion of the trucks and tractors, conversion of a letter of credit given pursuant to the lease contract, and from Gelco, individually, for interference with the agreement between T. P. Leasing and Baker Leasing. Baker Leasing counterclaimed against T. P. seeking damages occasioned by its alleged breach of the contract. The jury found for Baker/Gelco on the complaint of T. P. Leasing, and for T. P. Leasing on the countercomplaint of Baker/Gelco, and T. P. Leasing brings this appeal, asserting that the trial court erred in refusing to instruct on notice, estoppel, and interference with contract. Our jurisdiction is pursuant to Rule 29(l)(o) of the Rules of the Arkansas Supreme Court.

The opposing parties to this controversy each claimed that the other breached the agreement of September 15, 1981, between Baker Leasing Corporation, as lessor, and T. P. Leasing, as lessee. (Appellee, Gelco Corporation acquired 100% of the stock of Baker Leasing in 1982.) The contract in paragraph 12 provided that either party could terminate a vehicle’s lease term on certain conditions and upon giving notice pursuant to the contract. If termination was to be sought by the lessee, T. P., then paragraph 12 of the lease provided that the lessor, Baker, at its option could require the lessee to purchase the vehicles that were the subject of the terminated lease, in accordance with valuation formulas stated therein. However, notice of the election by Baker to exercise the option to require purchase had to be given within 15 days following the termination notice. On November 19,1983, pursuant to paragraph 12, T. P. Leasing appropriately notified Baker Leasing to terminate all equipment covered under the lease. On the day prior to the expiration of the 15 day period, December 2,1983, Baker, acting through Gelco Truck Leasing, attempted to exercise its option to require T. P. to purchase the vehicles that were the subject of the terminated lease. The December 2nd letter would appear to fall far short of an unequivocal exercise of the option given to Baker, the lessor, and unquestionably was hand delivered to T. P. Leasing, although the testimony was in dispute as to the date of delivery. The basic lease agreement in paragraph 20 provided as follows: “All notices will be written, signed on behalf of the notifying party, sent by United States registered or certified mail. . . . Any notice is deemed given when mailed.”

The December 2,1983, letter and its method of delivery are significant. One of T. P. Leasing’s primary arguments at the trial was that it was not in breach of the contract, as alleged by Baker/ Gelco, because its activities after December 2, 1983, were in reliance upon the fact that Baker/Gelco had not exercised its option pursuant to paragraph 12. Appellees alleged that appellant, T. P., breached the contract in its failure to conduct its activities in accordance with the valid exercise by appellee of its rights to require appellant to purchase the vehicles. The issue of notice by appellee of the exercise of its option, then, is critical.

Appellant requested the following instruction: “The parties to a contract may specify in the contract how notice shall be given under the contract, and if they do so, the notice required depends on the provisions of the contract. A written notice should be clear, definite and explicit, and not ambiguous.” The trial court refused to give the proffered instruction and did not otherwise instruct the jury on the issue of notice.

Although appellees argue that the instruction was misleading and an incorrect statement of the law, they cite no authority for that proposition. In Allison v. O’Dell, 263 Ark. 473, 565 S.W.2d 438 (1978), the exercise of an option was in writing, mailed prior to the expiration of the deadline but received thereafter. The initial offer had been communicated by telephone. In holding that the exercise of the option was not timely, we said, “it is well settled that for the exercise of an option to be valid, the exercise must be in accordance with the terms of the option.”

We have further held that notice of termination, in order to be effective, must be clear, unambiguous, and unequivocal. Purnell v. Atkinson, 248 Ark. 401, 451 S.W.2d 734 (1970).

Appellees argue that the jury’s verdict, because of the manner in which it was instructed, both on the cause in chief and the counterclaim, indicates that the jury found the appellant breached the contract for reasons other than relating to consequences flowing from the notice. Appellees cite Holiday Inns, Inc. v. Drew, 276 Ark. 390, 635 S.W.2d 252 (1982) for the proposition that reversal of a case for refusal of a proper instruction is not required if it appears that prejudice has not resulted. However, in the Drew case we also said:

Jurors are not required to take the law from counsel, and it was putting an undue burden upon the defendant company to compel it to rely upon convincing the jury as to the proper view of the law by an argument of its attorney. If the sympathies of the jury happen to be on the other side, that might be difficult to do, and might be too heavy of a task even for the most gifted attorney. It is a burden that the law does not impose, for it is the duty of the judge to instruct; and each party has the right to have the jury instructed upon the law of the case clearly and pointedly, so as to leave no ground for misapprehension or mistake. [Quoting Beevers, Adm’x v. Miller, 242 Ark. 541, 414 S.W.2d 603 (1967) at 548-49.]
A reversal must follow the refusal of a proper instruction, unless it affirmatively appears that no injury resulted.. . . Although the court is not required to give correct instruction offered when the instructions given explicitly, clearly, fully and fairly cover the matter requested, we cannot say that prejudice to Appellant did not result in this situation. [Beevers, supra at 549.]

In the instant case we do not believe we can ascertain the nuances of the jury’s reasoning in order to reach its verdict, nor are we convinced that the verdict was indicative of a finding that notice by appellee was proper. We feel that the nature, method, and quality of notice was critical and central to the key issue: which of the parties breached the contract. Accordingly, the trial court’s refusal to instruct on notice as requested by appellant was erroneous.

The other points raised by appellant on appeal may become issues at a retrial of this case, so we will address them in abbreviated fashion. Appellant requested the trial court to instruct on the issue of estoppel, which was refused. Appellee urges that the failure to give the instruction was harmless in light of the fact that instructions on waiver were given. Without going into elaborate detail, the factual issue involved a course of dealing between the parties concerning method and timeliness of payments which served, arguendo, to alter the expressed terms of the lease contract. Appellant correctly asserts that waiver and estoppel are not synonymous, and while the concepts overlap to a degree, they involve separate elements. See, e.g., Mobley v. Estate of Parker, 278 Ark. 37, 642 S.W.2d 883 (1982). We believe the instruction should be given upon remand.

Finally, appellant asserts that it is reversible error for the trial court to refuse to instruct the jury on the tort of interference with contract. The court did so because it did not find any evidence that Baker and Gelco were operated other than as one entity. We think the correct rule is that a parent corporation’s privilege permits it to interfere with another’s contractual relations when the contract threatens a present economic interest of its wholly owned subsidiary, absent clear evidence that the parent employed wrongful means or acted with an improper purpose. Phil Crowley Steel Corp. v. Sharon Steel Corp., 782 F.2d 781 (8th Cir. 1983). The instruction was correctly denied.

Reversed and remanded.

Glaze, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    Joe and Sherry TACKETT v. Jimmy ROBBS and GULF OIL CO.
    87-47
    735 S.W.2d 700
    Supreme Court of Arkansas
    Opinion delivered September 14, 1987

      Hurst Law Office, by: Larry Honeycutt, for appellants.

      Wright, Chaney & Berry, P.A., and Laser, Sharp & Mayes, P.A., for appellees.
   Jack Holt, Jr., Chief Justice.

Joe and Sherry Tackett, the appellants, filed a complaint for the negligent installation and maintenance of gasoline tanks and equipment at their service station, which caused gasoline leakage and related damages. Three defendants were involved in this lawsuit: Robbs Oil Company, Jimmy Robbs and Gulf Oil Co. After consideration of various motions, the trial court dismissed the Tacketts’ complaint against Robbs Oil Company, Inc. and appellee, Jimmy Robbs, leaving the lawsuit standing against Gulf Oil Company. The Tacketts appealed from the order of dismissal.

We dismiss this appeal because the order appealed from is not an appealable order meeting the requirements of A.R.C.P. Rule 54(b). United Parcel Service, Inc. v. Pridgen Security, Inc., 292 Ark. 11, 727 S.W.2d 381 (1987) Kilcrease v. Butler, 291 Ark. 275, 724 S.W.2d 169 (1987). A.R.C.P. Rule 54(b) provides in pertinent part:

when multiple parties are involved, or where more than one claim is presented, the trial court may direct the entry of a final judgment as to one or more but fewer than all of the parties and claims only upon an express determination that there is no just reason for delay and upon the express direction for the entry of the judgment.

The order of dismissal does not make a determination that there is no just cause for delay. Compliance with Rule 54(b), is a jurisdictional requirement which we are obligated to raise even though the parties do not. Arkansas Savings and Loan Association Board v. Corning Savings and Loan Association, 252 Ark. 264, 478 S.W.2d 431 (1972). We have issued numerous reminders that the rules of civil procedure do not permit an appeal in cases where defendants are dismissed and other defendants remain unless there is compliance with A.R.C.P. Rule 54(b). Kilcrease v. Butler, supra; Arkhola Sand & Gravel Co. v. Hutchinson, 289 Ark. 313, 711 S.W.2d 474 (1986); 3-W Lumber Co. v. Housing Authority for the City of Batesville, 287 Ark. 70, 696 S.W.2d 725 (1985);Sherman v. G&H Transportation, Inc., 287 Ark. 25, 695 S.W.2d 832 (1985); Tulio v. Arkansas Blue Cross and Blue Shield, Inc., 283 Ark. 278, 675 S.W.2d 369 (1984); Vermeer Manufacturing Co.v. Vandiver Equipment Co. and Ford Motor Co., 279 Ark. 218, 650 S.W.2d 244 (1983). We do so again.

Appeal dismissed without prejudice to an appeal from a final judgment.

Glaze, J., not participating.


author: Darrell Hickman, Justice.

text:
    Ricky McCLENDON v. STATE of Arkansas
    CR 86-211
    735 S.W.2d 701
    Supreme Court of Arkansas
    Opinion delivered September 14, 1987

      Spencer, Spencer, Depper & Guthrie, by: David F. Guthrie, for appellant.

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

This criminal case is not properly before us; therefore, we do not reach any issues raised regarding the appellant’s trial.

McClendon was convicted on February 2,1984, of rape and aggravated robbery and sentenced to life imprisonment on each count. No appeal was filed. On June 11, 1984, pursuant to A.R.Cr.P. Rule 37, McClendon filed a petition for a new trial alleging ineffective assistance of counsel. The court held a hearing and found that McClendon’s counsel did not perfect an appeal as he should have. On March 13,1986, the court ordered a new trial. The state filed a notice of appeal but did not perfect the appeal.

Instead, on July 29, over three months later, the state filed a motion asking the court to reconsider its order granting a new trial. The judge found that, instead of a new trial, the appellant should have been granted a belated appeal. The time for perfecting a belated appeal is 18 months, and it had expired. The trial judge ordered the appellant to request a belated appeal, and the case comes to us in this posture.

The appellant argues that the trial court could not amend its order for a new trial because Rule 37 explicitly states there will be no rehearing of these decisions. Rule 37.2(d) reads: “The decision of the court in any proceeding under this rule shall be final when the judgment is rendered. No motion for rehearing shall be considered.”

We agree with the appellant. While the appropriate remedy was to see that appellant was granted an appeal, the order for a new trial should stand. It was a final order. The state could have appealed and chose not to do so. The trial court was without authority to set its March order aside.

Therefore, the order of September 25, 1986, amending the March order, is reversed, and the case is remanded for a new trial.


author: John I. Purtle, Justice.

text:
    Casimiro GARZA v. STATE of Arkansas
    CR 87-52
    735 S.W.2d 702
    Supreme Court of Arkansas
    Opinion delivered September 14, 1987

      Gregory E. Bryant, for appellant.

      Steve Clark, Att’y Gen., by: /. Blake Hendrix, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

A verdict of guilty of first degree murder, Ark. Stat. Ann. § 41-1502(b) (Repl. 1977), was delivered by a jury in Pulaski County, Arkansas, and the appellant was sentenced to forty years in the Department of Correction. He makes two arguments on appeal. First, the state did not produce sufficient evidence from which the jury could have found that the appellant acted with the premeditated and deliberated purpose of causing his wife’s death. The second argument is that the court erred in refusing to grant a mistrial due to alleged prosecutorial misconduct during the closing argument. We are not convinced that either argument establishes that prejudicial error occurred and therefore affirm the conviction.

On August 20,1985, a Little Rock police officer was on duty at the Baptist Medical Center emergency room. He observed a vehicle drive into the emergency room area. The man driving the car, subsequently identified as Garza, exited and attempted to inform those present that his injured wife was in the parked vehicle. The man had injuries about his face and was apparently attempting to obtain medical attention for himself, his wife, or both of them. Shortly thereafter, the officer discovered the appellant’s dying wife in the back seat of the vehicle. It was determined that she had been shot three times. She was pronounced dead at the emergency room.

We first consider the appellant’s argument that the state did not produce sufficient evidence to prove deliberation and premeditation. We have considered the subject of premeditation and deliberation on a number of occasions. Such intent may and often must be inferred from circumstantial evidence. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979). Premeditation and deliberation are not required to exist for any particular length of time and may in fact be formed almost on the spur of the moment. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979). The necessary intent may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Parker v. State, 290 Ark. 158, 717 S.W.2d 800 (1986); and McLemore v. State, 274 Ark. 527, 626 S.W.2d 364 (1982).

After the police officer and others investigated the scene, it was determined that the appellant himself had been shot in the mouth and was unable to speak. The officer then found Mrs. Garza in the back seat of the automobile with three bullet wounds. She died in the emergency room without regaining consciousness. Although appellant was unable to talk, he was questioned by the police and responded by shaking his head. They learned through this method of interrogation that the .45 caliber pistol was owned by his wife and that he had used the pistol to shoot her.

The medical examiner did an autopsy and testified at trial that Mrs. Garza received three bullet wounds. One was through the left hand from the palm to the back. Another shot,, fired at a few inches, entered the right side of the decedent’s nose and went on through the facial bones severing the cervical spine. Another shot was fired at close range into the back of Mrs. Garza’s head. According to the examiner’s testimony, she was most probably looking down at the time this bullet was fired. This third bullet passed through the midbrain. The body was also examined for drugs and alcohol and both tests were negative. A metals trace test was performed on both of the decedent’s hands with no reaction.

One witness testified that he heard three gunshots on the evening of the murder. He looked out of a window of his home and saw the appellant and his wife stopped in their Oldsmobile in front of his driveway. He testified that he saw the appellant get out of the passenger side of the car and walk around to the other side where the decedent was slumped across the steering wheel. The appellant then dragged and shoved his wife into the back seat of the car and drove away.

The defense was that the appellant was under the influence of drugs to such an extent that he was incapable of forming the necessary intent to commit first degree murder. However, it is apparent from the evidence that the three shots were fired deliberately with some time between each shot. The jury could have found premeditation and deliberation from the nature and extent of the wounds.

The second argument presented by the appellant is that the trial court erred by not granting a mistrial due to alleged prosecutorial misconduct during the closing argument. During his closing argument the prosecutor was discussing the three shots which were fired into the decedent’s body. In doing so he exclaimed, “Pow, Pow, Pow!” The second instance of alleged misconduct was when the prosecutor made several remarks concerning the victim, including the number of years she had been married to the appellant and the number of children she had borne him. The appellant argues that these remarks violated the “Golden Rule,” i.e., that it is improper for the prosecution to ask the jury to put themselves in the position of the victim. No citation of authority for this proposition is presented in the brief. Therefore, we will not pursue the “Golden Rule” argument further.

Prosecutorial conduct in closing argument has frequently been a subject dealt with by this Court. Many of our prior decisions on this subject are discussed in Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986). One of the fundamental rules of proper trial procedure and tactics is that the closing arguments of both counsel must be confined to the questions in issue, the evidence introduced at trial, and all reasonable inferences and deductions which can be drawn therefrom. Hill, supra. We have many times reversed judgments of conviction where the prosecutor made prejudicial statements which had no basis in the evidence presented. See, e.g., Simmons and Flippo v. State, 233 Ark. 616, 346 S.W.2d 197 (1961). Likewise we have affirmed convictions when it was argued on appeal that the prosecutor made improper closing arguments. See, e.g., Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981). We discussed closing arguments by the prosecutor in the case of Floyd v. State, 278 Ark. 342, 645 S.W.2d 690 (1983), where we stated: “Likewise, we agree with appellant that the state’s attorney acts in a quasi-judicial capacity and it is his duty to use fair, honorable, reasonable and lawful means to secure a conviction in a fair and impartial trial.”

We cannot prescribe an exact outline to be used by attorneys in closing arguments. However, we hold that the statements complained of here were within the perimeter of conduct permitted in closing arguments. We do not find anything about either of these expressions which violates the quasi-judicial function of the prosecutor to use fair, honorable, reasonable and lawful means to secure a conviction in a fair and impartial manner.

Affirmed.

Glaze, J., concurring.


author: Robert H. Dudley, Justice. Per Curiam. Tom Glaze, Justice,

text:
    Darin DUNLAP, a Minor, by FIRST STATE BANK OF CONWAY, as Guardian of his Estate, and by his Father and Next Friend, Randall T. DUNLAP v. Thomas BUCHANAN
    87-13
    735 S.W.2d 705
    Supreme Court of Arkansas
    Opinion delivered September 14, 1987
    [Supplemental Opinion on Denial of Rehearing October 19, 1987.]

      The McMath Law Firm, P.A., by: Phillip H. McMath, for appellants.

      Friday, Eldredge & Clark, by: Phillip Malcom and Calvin J. Hall, for appellee.

      Glaze, J„ concurs.

   Robert H. Dudley, Justice.

Appellant, a severely retarded child, filed suit alleging obstetrical malpractice by appellee, a medical doctor specializing in family practice. Appellant alleged that he was injured during birth because of appellee’s negligent use of forceps and his failure to perform a cesarean section. Additionally, it was alleged that appellee was negligent in the neonatal management of appellant. After an extended trial the jury returned a verdict in favor of the appellee. The single assignment of error on appeal is that the trial court erred in admitting four records into evidence. We find no abuse of discretion in the ruling and affirm the judgment.

Sixteen months before the trial the appellant asked the appellee by interrogatory to identify “all exhibits the defendant intends to introduce. . . .” Appellee responded that he intended to introduce appellant’s various medical records. At the close of the appellant’s case-in-chief, the appellee supplemented the response by notifying the appellant and the court that he would seek to introduce four medical records, other than appellant’s records, in the presentation of his case. Appellant objected to the admission of the four additional records because they were not listed in the original response.

ARCP Rule 26(e)(2)(B) provides that a party is under a duty to supplement a response to discovery when the responding party “knows that the response though correct when made is no longer true and circumstances are such that a failure to amend the response is in substance a knowing concealment.” This language gives the trial court considerable latitude to excuse failure to supplement when the response to an answer changes, and it requires at least passive concealment before imposition of a sanction. D. Newbern, Arkansas Civil Practice and Procedure, § 17-3.

The trial court conducted a hearing before allowing the appellee to introduce the records. The proof at that hearing is summarized as follows:

First, during cross-examination of one of appellant’s medical experts, the witness stated that it was unusual for a baby’s head to present in a left occipital anterior position with the head crowning. After that answer was given the appellee called the medical records clerk of the hospital where appellant was delivered and obtained a record which showed that many babies present in a left occipital anterior position. Appellee sought to introduce that record to show lack of experience by appellant’s expert.

Second, in his case-in-chief the appellant questioned the reason appellee came back to the hospital to see appellant at 11:00 p.m., after receiving a call from a nurse at 6:00 p.m. concerning appellant’s condition. In his deposition the appellee had said he did not know why he was at the hospital at that time. During the trial the appellee recalled delivering another baby about that time and then remembered that was the reason he was at the hospital. The appellee then obtained the medical records of the other mother and baby and sought to introduce that record to prove the reason he visited appellant at 11:00 p.m.

Third, in his discovery deposition the appellee testified that he could not perform a cesarean section by himself. At trial it developed that appellant interpreted the statement to mean appellee was incompetent to perform such an operation. The appellee strongly disputed appellant’s interpretation, and, during appellant’s case-in-chief, obtained a hospital record showing that he was the operating surgeon for a cesarean section only two days after appellant was born and at that time also obtained the hospital’s by-laws which provided that an operating surgeon must have a qualified physician assistant during major surgery. Appellant sought to introduce those records to show that appellee was competent to perform the surgery, but that the operation required two doctors, one for the mother and one for the child.

At the conclusion of the hearing the trial judge ruled that the records should not be excluded from evidence solely as a result of any sanction under Rule 26(e). As can be seen from the summary of the hearing, the proof indicated that the response was truthful when made and the need to change the response was the result of trial developments. Under the circumstances, the supplementation was seasonably made. There was no proof of passive concealment by the appellee, and the trial court did not abuse its discretion in its ruling.

Affirmed.

Supplemental Opinion on Denial of Rehearing

October 19, 1987

738 S.W.2d 93

Per Curiam.

Petition for rehearing is denied.

Glaze, J., concurs but would supplement the opinion for clarification.

Tom Glaze, Justice,

concurring. Appellants complain in their petition for rehearing that this court, in its opinion, has engrafted a new requirement labeled “passive concealment” that the trial court must consider when ruling, under ARCP Rule 26(c), whether it should excuse a party’s failure to supplement a response to discovery. The court’s opinion states:

ARCP Rule 26(e)(2)(B) provides that a party is under a duty to supplement a response to discovery when the responding party “knows that the response though correct when made is no longer true and circumstances are such that a failure to amend the response is in substance a knowing concealment.” This language gives the trial court considerable latitude to excuse failure to supplement when the response to an answer changes, and it requires at least passive concealment before imposition of a sanction. D. Newbern, Arkansas Civil Practice and Procedure, § 17-3.

Appellants urge the court has incorporated a theory supported only by a civil procedure treatise with no citation of authority, and they could not have anticipated the “passive concealment” requirement. They cite King v. Carden, 229 Ark. 926, 319 S.W.2d 214 (1959) as controlling, and, based on that holding, submit that this court could have affirmed the case at bar without discussing passive concealment and by simply stating that no prejudice occurred from appellee’s failure to supplement his answers prior to trial. I agree with appellants’ assessment on this point.

In our opinion, we pointed out that, under ARCP 26(e)(2)(B), a party is under a duty to supplement a response to discovery when the party “knows that the response though correct when made is no longer true and circumstances are such that a failure to amend the response is in substance a knowing concealing.” (Emphasis mine.) While I understand a “knowing concealing” may trigger a court’s sanction under Rule 26,1 am uncertain whether a “passive concealment” should, especially since it is unclear what that term encompasses or means. Clearly, that term is not mentioned or defined in Rule 26. If, for example, a passive concealment means a concealment in which a party did not participate but was one about which he should have had knowledge, I am doubtful Rule 26 sanctions would apply.

I suppose we could attempt in this decision to define passive concealment and distinguish or compare such a term with those now appearing in Rule 26. At least, for clarity’s sake, we should do just that if this court chooses to add that terminology as words of art for attorneys who must consider and apply Rule 26.

While I agree that the trial court did not abuse its discretion in ruling that appellee’s evidence should be admitted at trial, I do agree with appellants that we should exclude the “passive concealment” requirement we mentioned in our opinion. Therefore, I would deny appellants’ petition for rehearing but modify the court’s opinion deleting the passive concealment references. At the least, we should define the term “passive concealment” if it is left a part of this court’s opinion.


author: David Newbern, Justice.

text:
    Don RAGAR v. HOOPER-BOND LIMITED PARTNERSHIP FUND III
    87-8
    735 S.W.2d 706
    Supreme Court of Arkansas
    Opinion delivered September 14, 1987

      Gene O’Daniel and David Hodges, for appellant.

      Richard D. Taylor, for appellee.
   David Newbern, Justice.

The appellant complains about a court order which is not final and thus not appealable. We must, therefore, dismiss the appeal.

Don Ragar, the appellant, was a limited partner in the appellee Hooper-Bond Limited Partnership Fund III (“the Fund”). Ragar, on behalf of himself and other limited partners, sued Hooper and Bond, who were the general partners in the Fund, for fraud and recovered a judgment for $150,000. The Fund was named as a plaintiff in that action, although the complaint characterized the action as derivative. [See Benton Window and Door Little Rock Division, Inc. v. Garrett, 290 Ark. 244, 718 S.W.2d 438 (1986).] We affirmed. Hooper v. Ragar, 289 Ark. 152, 711 S.W.2d 148 (1986).

After the judgment was affirmed, a motion was filed in the circuit court on August 8,1986, asking guidance in disbursement of the judgment. The motion was filed jointly by David Hargis, the attorney who represented Ragar and the Fund in obtaining the judgment, and James Penick, III, attorney for Flake & Company, Inc., which had become the successor general partner in the Fund. In the motion, Hargis sought a fee of $55,462.50 for representation of the Fund. An additional $12,457.00 was sought for “the limited partnership’s legal counsel,” presumably now Penick, for work done for the Fund during the pendency of the appeal to reorganize the Fund and keep it in existence. The motion also noted that a precise accounting of all expenses and fees would be presented at a hearing before the court. The motion cited Ark. Stat. Ann. § 65-559 (Repl. 1980) and its requirement that the court review and approve disbursements from the judgment.

On September 30, 1986, an order was entered substituting Gene O’Daniel as attorney for Ragar because it was contemplated that Hargis would have to testify in justification of his fee. A hearing on the matter was set for October 6,1986. On October 2,1986, Ragar moved for a continuance on the basis that his wife, Christine Ragar, would be unavailable to testify on October 6, and he would be entitled to expenses resulting from her loss of time as a real estate agent which was caused by work done by her on Ragar’s behalf in preparation of the case resulting in the judgment.

The record does not show that the continuance was expressly denied, but the hearing was held on October 6, 1986, and the court entered an order allowing the fee requested by Hargis as well as $2,853.77 in unpaid expenses as well as $16,810.75 representing expenses “actually paid” by Don Ragar. The order noted the objection of counsel for the Fund, presumably Penick, and noted that none of the limited partners present objected to the disbursement. The order provided:

The fund now held by David M. Hargis, in trust for the limited partnership, should have deducted from it these noted sums, and the remainder, plus accrued interest, should be transmitted to James Penick, III., attorney for Flake & Company, Inc., the general partner for the limited partnership, which is authorized hereby to use such fund for the benefit of the limited partnership; ....

In a final paragraph, the order stated:

Other claims by Don Ragar, Christine Ragar, and any others to all or any part of such fund, or any other issues which must be resolved or which may be necessary in concluding this litigation, should be scheduled for further hearing according to the requirements of the court’s docket.

The order was filed October 8, 1986.

On October 31, 1986, Ragar filed a motion seeking reimbursement of Christine Ragar’s expenses from the judgment. On November 4,1986, he moved to prohibit Flake & Company, Inc., from further disbursing the money remaining in the judgment, claiming that a meeting of the Fund had been called “for the ostensible purpose of determining distribution” of the judgment money which had been transferred to Penick. The Fund filed a response to the October 31 motion. There is nothing in the record to show that the court has ruled on any motion made after its order of October 6, 1986.

The appellant has stated four points for reversal, and the appellee has responded with six points for affirmance. It is impossible to follow the argument on these points, as neither party has complied with Arkansas Supreme Court and Court of Appeals Rule 9(f) by subheading the argument to correspond with the points. However, we can tell Ragar’s main allegation is that the court erred on October 6, 1986, by ordering the money transferred to the Fund before all the expenses had been considered. The answer to that argument is that the order is patently not a final one. It states that the money being transferred to the Fund is to be subject to further claims later to be determined by the court. The impetus for this appeal apparently is that Ragar fears Flake & Company, Inc. will disburse the money among the partners and there will be none left to reimburse the expenses he now alleges. That was the subject of the motion Ragar made on November 4, 1986. That motion, as far as the record before us shows, has not been ruled upon, although the Fund states in its brief that a final order of some sort has been entered and will be the subject of a further appeal which is now awaiting preparation of transcript.

The trial court’s order transferring the money representing the remainder of the judgment from Hargis to the Fund is not a final order, as it contemplates a hearing on further expenses to which it may be subject. We will not reach the merits of an appeal if the order appealed from is not final. Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984); Corning Bank v. Delta Rice Mills Inc., 281 Ark. 342, 663 S.W.2d 737 (1984).

Appeal dismissed.

Holt, C.J., not participating.


author: Tom Glaze, Justice.

text:
    PULASKI COUNTY CIVIL SERVICE COMMISSION, Ellis THROCKMORTON, et al. v. Paul F. HENSON
    87-3
    735 S.W.2d 700
    Supreme Court of Arkansas
    Opinion delivered September 14, 1987

      Ivester, Henry, Skinner & Camp, by: Stephen L. Curry, for appellants.

      Howell, Price, Trice, Basham & Hope, P.A., by: William H. Trice III, for appellee.
   Tom Glaze, Justice.

This case involves the constitutionality of Act 952 of 1977, as amended (Ark. Stat. Ann. §§12-1120 — 1137). After this cause was lodged on appeal and the appellants’ brief was filed, the General Assembly enacted Act 657 of 1987, which repealed Act 952 of 1977 in its entirety. Act 657 contained an emergency clause making the Act effective immediately upon its approval by the Governor on April 6,1987.

Appellee earlier had moved that this cause be dismissed, alleging the issues raised herein had become moot upon the repeal of Act 952 and the abolishment of all civil service commissions, including the Pulaski County Civil Service Commission, created under Act 952. Although we denied appellee’s earlier motion, we now grant it after the submission of this cause and our opportunity to fully review the parties’ briefs and arguments therein.

Appellee’s motion to dismiss is granted.

Hickman, J., not participating.


text:
    Jackie KILGORE v. James T. VINER
    87-71
    736 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered September 21, 1987

      Wright, Lindsey & Jennings, for appellant.

      Southern, Allen, James & Jones, for appellee.
   Jack Holt, Jr., Chief Justice.

On December 9, 1982, automobiles driven by Jenny Jett Kilgore and Billye G. Viner collided on Rodney Parham Road in Little Rock, resulting in serious physical injuries to Billye G. Viner. As a result, she filed suit against Jenny Jett Kilgore; Jenny’s brother Joel, the owner of the automobile; and Jackie Kilgore, Jenny’s mother. James T. Viner, Billye’s husband and co-plaintiff, took non-suit of his claim against all defendants. In addition, Billye obtained a non-suit of her claim against Joel. The case ended in a verdict for Billye Viner against Jenny Jett Kilgore and Jackie Kilgore. Later James Viner sued Jackie Kilgore for loss of consortium, the result of which gives rise to this appeal.

Prior to trial on the claim for loss of consortium, James moved for a partial summary judgment on the question of negligence arguing that the determination in the prior trial that Jackie Kilgore was negligent barred relitigation of the issue of negligence. The trial court took that motion under advisement. James also made a motion for a directed verdict at the close of all the evidence, which was, likewise, taken under advisement. The jury returned a defendant’s verdict in Jackie Kilgore’s favor, however, the trial court in entering its judgment on the verdict, provided in part, “the court will hereafter consider the motion for summary judgment and motion for directed verdict by the plaintiff, which were taken under advisement.”

Thereafter, the trial court granted the motion for summary judgment and the motion for judgment notwithstanding the verdict, and in its order stated “a separate hearing shall be held as soon as practical for arguments of counsel as to the amount of plaintiffs damages.” The appeal is from this order. Inasmuch as the trial court made provisions for and reserved a separate hearing for damages, its order is not a final order subject to appeal. We will not reach the merits of an appeal if the order appealed from is not final. Ark. R. App. P. 2(a)(1); Ragar v. Hooper-Bond Limited Partnership Fund III, 293 Ark. 182, 735 S.W.2d 706 (1987); Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984).

Even though the parties did not raise the issue of the appealability of this order, it is the court’s duty to determine whether or not it has jurisdiction. Roy v. International Multifoods Corp., 268 Ark. 958, 597 S.W.2d 129 (1980); Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326 (1982). In doing so, we find this order not appealable under Rule 2(a)(1), supra, and dismiss.


text:
    ONE 1979 BROWN FORD PICKUP TRUCK v. STATE of Arkansas
    87-77
    736 S.W.2d 2
    Supreme Court of Arkansas
    Opinion delivered September 21, 1987

      Hurst Law Office, by: Q. Byrum Hurst, for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

This is an appeal of a forfeiture decision regarding John Glasgow’s 1979 Ford pickup truck.

Glasgow was charged with four counts of delivering controlled substances. The state sought forfeiture of Glasgow’s vehicle. The forfeiture proceeding was held before Glasgow’s criminal trial. An undercover police officer testified that she bought amphetamines and marijuana from Glasgow. The officer also testified that Glasgow delivered the drugs in his truck and that one sale took place in the truck.

Glasgow argues that holding the forfeiture proceeding prior to his criminal trial violates the Fifth Amendment to the U. S. Constitution. He claims that he could not testify at this proceeding without incriminating himself, since his testimony could be used against him at his trial. This argument was not raised during the proceeding, so we do not consider it on appeal. See Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985). The appellant first raised this issue in a motion for reconsideration after the court’s decision. That is too late. Murray v. State, 275 Ark. 46, 628 S.W.2d 549 (1982).

A mobile phone installed in the truck was also seized. Glasgow argues that under United States v. One 1978 Mercedes Benz Four Door Sedan, 711 F.2d 1297 (5th Cir. 1983), the phone was not a part of the truck and should not have been part of the forfeiture order. We need not address the issue of whether the phone was indeed a part of the truck, because there was evidence that the phone was used by Glasgow in the drug deliveries.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Cheryl A. THOMAS v. SERVICE FINANCE CORPORATION
    87-87
    736 S.W.2d 3
    Supreme Court of Arkansas
    Opinion delivered September 21, 1987

      Josh E. McHughes, for appellant.

      Julius C. Acchione, for appellee.
   Robert H. Dudley, Justice.

The appellant, Cheryl A. Thomas, entered Memorial Hospital of North Little Rock on March 2, 1981. Upon entering she executed an agreement promising to pay all debts which would be incurred during her hospitalization. After incurring a debt of $1,128.80, she was released on March 7,1981. She again entered Memorial Hospital on March 23,1981, and again executed an agreement promising to pay all debts incurred during her stay. After incurring an additional debt of $3,263.20, she was released on March 31, 1981. The debt owing on the two accounts was assigned by the hospital to appellee, Service Finance Corporation. Appellant made a few small payments on the debt to appellee, the last being on December 4, 1981.

Act 638 of 1983, Ark. Stat. Ann. § 37-245(a) (Supp. 1985), approved on March 22, 1983, became effective on July 4, 1983, and provides: “No action shall be brought to recover charges for medical services performed or provided prior to April 1,1985, by a physician or other medical service provider after the expiration of a period of eighteen (18) months after the date such services were performed or provided.”

On June 12, 1985, the appellee incurred an additional $103.00 debt and on July 28, 1985, another $43.94 debt. These debts were also assigned to appellee.

On March 27, 1986, the appellee filed suit against the appellant for the entire debt. The appellant pleaded the eighteen month statute of limitation. The trial court refused to apply the eighteen month statute and instead applied Ark. Stat. Ann. § 37-209 (Repl. 1962), the five year statute of limitation for promissory notes, and granted judgment for the entire debt.

In Ballheimer v. Service Finance Corp., 292 Ark. 92, 728 S.W.2d 178 (1987), we held that the eighteen month limitation contained in Ark. Stat. Ann. § 37-245(a) (Supp. 1985) is applicable to a debt for hospital services and such a limitation does not constitute a denial of equal protection of law.

The appellee argues that the eighteen month limitation is unconstitutional because it retroactively took away a subsisting vested right and, therefore, is unreasonable. The argument is without merit. Here, the debt barred by limitation was incurred in March 1981. The new limitation act was approved on March 22, 1983, but did not become effective until July 4, 1983. Thus, the appellee’s remedy was not retroactively cut off as appellee had a period of 104 days in which to file its action. In a very similar case, Steele v. Gann, 197 Ark. 480, 123 S.W.2d 520, 120 A.L.R. 754 (1939), we upheld a shortened statute of limitations and explained:

Again, there is no emergency clause, and the legislature, in passing the act without such a clause, thereby gave all parties 90 days in which to bring suits where the cause of action accrued before the effective date of the act. The suit, of course, brought after the passage of the act and before it became effective, would be under the law that existed prior to the passage of the act.
In the instant case the appellant had 90 days after the passage of the act in which to bring her suit, and whether 90 days was a reasonable time, was a question for the legislature.

Accordingly, we reverse that part of the final order granting judgment for the debt incurred in March 1981, which was without the eighteen month statute of limitation, but affirm that part of the order giving judgment for the debt incurred in June and July 1985, which was within eighteen months of the filing of the suit. The parties have stipulated that the balance due on the 1985 debt is $137.94. The appellee is entitled to have a judgment for that amount plus interest. We therefore remand for entry of a judgment consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

Hickman, J., dissents.


text:
    Donald J. ADAMS, Special Administrator for the Estate of Sue S. MORAK v. Don WEST, Administrator of the Estate of Sue S. MORAK
    87-56
    736 S.W.2d 4
    Supreme Court of Arkansas
    Opinion delivered September 21, 1987

      Donald J. Adams, for appellant.

      Gresham & Kirkpatrick, by: James E. Gresham, for appellee.
   David Newbern, Justice.

Donald J. Adams, an attorney who was appointed special administrator for the purpose of taking an appeal from an earlier ruling of the probate judge in this case, has appealed from an order granting him a fee. His contention is that the fee he was granted for the legal work he performed was too little. His argument is mainly that he was appointed as a special administrator but was expected to act as an attorney and that the court erred in considering itself bound to limit the fee to that authorized by Ark. Stat. Ann. § 62-2208(a) (Supp. 1985) for personal representatives. His second argument is that, if he was being compensated as an attorney, the fee was too small. The judge reconsidered his ruling in response to a brief filed by Mr. Adams and found that the fee was adequate whether it was considered a personal representative’s fee under § 62-2208(a) or an attorney’s fee under Ark. Stat. Ann. § 62-2208 (d) (Supp. 1985), which sets forth the guidelines for fees for attorneys who represent the personal representatives of decedents. We cannot say the court’s holding was erroneous, and therefore we affirm.

This is the third appeal involving the estate of Sue Morak. The appeal giving rise to the work performed by Mr. Adams was of a decision by the judge that some $380,000 in Ms. Morak’s safe deposit box was the property of parties named Davison. Mr. Adams was appointed special administrator to appeal that decision, and he prevailed in this court, thus saving $380,000 for the estate against the claim of the Davisons. Newton County v. Davison, 289 Ark. 109, 709 S.W.2d 810 (1986). After that appeal, Mr. Adams submitted his report to the court and asked for a fee of $40,000 or $50,000. The court entered an order that he be paid $11,500, stating that the fee was limited to that amount by § 62-2208(a). In a hearing on the matter of Mr. Adams’s fee, counsel for Newton County, which had been a party to the litigation, stated he thought Mr. Adams’s fee should be $35,000. The judge asked the parties to brief the issue whether there was authority to award a fee in addition to the $11,500 the court had approved and “retained authority” to rule on the matter if such briefs were submitted. Mr. Adams did brief the issue.

Thereafter, and after this appeal had been docketed in this court, the probate judge entered a further order, noting that he had retained the authority to do so. Mr. Adams supplemented the record with that order and does not argue that the court lacked jurisdiction to enter it. In that order, the court said, in part, after noting that it could order a fee paid to Mr. Adams under either § 62-2208(a) or (d):

Mr. Adams did not have a contingent fee arrangement. He did not keep a record of his time spent on the case. He did not abstract the record for the Supreme Court but relied upon the abstract done by Newton County. He filed three short appellate briefs with total texts (including title pages), respectively of three pages, three pages and nine pages. He orally argued the case before the Supreme Court. Considering the law and the record, the Court finds that the fees already allowed in this case are adequate compensation, that they are earned and are just and reasonable and that the court is without authority based upon either the law or the facts in this case to allow any more fees to Mr. Adams. In addition, the court has also considered this matter from the standpoint of whether, no matter which schedule is applied to the fee request, has Mr. Adams been shown to have earned a fee greater than the one allowed and after considerable thought, the Court is of the opinion that he has not and that the allowance of any more would be excessive, therefore, the request for additional fees still pending is hereby denied.

Had the court held it was limited to a fee for Mr. Adams based solely on the schedule provided for personal representatives, we might well have agreed there was error. However, it is apparent that ultimately the court held that it could not, on the basis of the facts presented, justify a fee for Mr. Adams in excess of $11,500 even under the section permitting a fee to be paid to an attorney representing the estate. The trial court and the appellant agree that the appellant’s sole purpose as special administrator was to prosecute the appeal on behalf of the estate as an attorney. He performed no administrative duties involving the property of the estate. Section 62-2208(d) sets forth a fee schedule for an attorney hired by a personal representative as follows: 5% of the [first] $5,000; 4% of the next $20,000; 3% of the next $475,000; 2 %% of the next $300,000; 21/2% of the next $600,000; and 2% of the value of the remainder. We have done the arithmetic involved, and the fee on $380,000, according to the schedule, would be $11,000. The statute allows the court to award a higher or lower fee, based upon its determination of the value of the legal services rendered. That is primarily a factual determination to be made by the judge, and we will not reverse his decision unless it is clearly erroneous. Ark. R. Civ. P. 52(a). We cannot say that it is clearly erroneous in this case.

Affirmed.


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

text:
    IN THE MATTER OF THE ADOPTION OF Bradley Jason POLLOCK
    87-36
    736 S.W.2d 6
    Supreme Court of Arkansas
    Opinion delivered September 21, 1987
    [Rehearing denied October 26, 1987.*]

      Bob Frazier, for appellant.
    No response.
   Tom Glaze, Justice.

In this appeal, this court is presented its first opportunity to interpret Arkansas’s Revised Uniform Adoption Act [Ark. Stat. Ann. §§ 56-201 — 221 (Supp. 1985)] to determine whether, under that Act, this state’s probate courts are empowered to grant an adoption when neither the adopting parents nor the child sought to be adopted are residents of this state. The trial court concluded that, under such circumstances, it had no jurisdiction and dismissed the adoption proceedings. Appellants, Martin J. and Sandra Gail Pollock, challenge the trial court’s decision here, arguing the lower court did have authority to grant their adoption of the infant child, Bradley. We hold the trial court was correct, and, therefore, affirm.

The facts are undisputed. The Pollocks are residents of Marlboro, New Jersey. After having adopted one child, a daughter, Erica, from a private adoption agency in Pennsylvania, in 1983, the Pollocks decided that Erica should not be reared alone, so they looked to adopt another child. Because they were unable to obtain a second child from the agency they previously had employed, the Pollocks called some friends’ attorney who, in turn, had a Richard Gettleman telephone the Pollocks. Gettleman gave the Pollocks some names of people whom he helped with adoptions in the New York, New Jersey and Pennsylvania areas, and after calling and obtaining some good, as well as bad, stories from those references, the Pollocks opted to request Gettleman’s assistance in finding them a child to adopt. Gettleman subsequently arranged for such an adoption, which, he directed the Pollocks, was to take place in Malvern, Arkansas. The mother, Jenay, was (and is) a resident of the State of Washington, but she came to Malvern for the delivery of her child, Bradley. After Bradley’s birth, Jenay executed a consent for his adoption, and she then returned to Washington. The Pollocks then petitioned for both guardianship and the adoption of Bradley in Malvern, Hot Spring County, Arkansas, and the Hot Spring County Probate Court initially obliged the Pollocks by granting temporary orders in each proceeding. The court later extended the guardianship order, but dismissed the adoption proceeding, which led to this appeal. The Pollocks testified they understood Gettleman had arranged for this adoption to be consummated in Arkansas because of the legal difficulties to obtain adoptions in other jurisdictions more convenient to the parties.

The Pollocks’ argument that the Arkansas court has jurisdiction to order the adoption is based primarily upon their interpretation of § 56-205(a). That provision provides that adoption proceedings must be brought in the court for the place in which, at the time of filing or granting the petition, the petitioner or the individual to be adopted resides or in which the agency having the care, custody or control of the minor is located.

The Pollocks contend § 56-205(a) is not a jurisdictional requirement — as the trial judge held below — but rather only a venue requirement which the parties could, and did, willingly waive. Such an interpretation wholly ignores the intent of the framers of our Revised Uniform Adoption Act (RUAA). One need only refer to the Commissioner’s Note to § 4 [the same as our § 56-205(a)] of the RUAA which in relevant part reads:

Jurisdiction is based on residence of either the person seeking to adopt the child or the residence of the child at the time of adoption.

In the instant case, the Pollocks in no way contend that they, Bradley or Bradley’s mother have ever resided in Arkansas. To the contrary, the Pollocks specifically concede they reside in New Jersey and Bradley’s mother in Washington. As was adroitly pointed out by the trial judge, the parties’ only purpose for entering Arkansas was this adoption, and, afterwards, they most likely will have no reason to return to the state again.

In adopting § 4 of the RUAA without variation as a part of Arkansas’s adoption law, the General Assembly’s intent, in view of the RUAA’s commissioner’s note, is clear that jurisdiction to obtain an adoption in Arkansas is based upon the residence of either the person seeking the adoption or the child sought to be adopted. The General Assembly’s intent in this respect is fortified further by noting the relevant and comparable provisions of the Uniform Adoption Act (UAA), which, if it had been enacted by the General Assembly, would have permitted the adoption of a child who was merely present in, and not a resident of, this state. See Uniform Adoption Act, § 4,U.L.A. (1957); seealso% 2 of the same Act (any child present within this state at the time the petition for adoption is filed, irrespective of birth or place of residence may be adopted). Even though the framers of the UAA provided no residency requirement for the adopted child as the basis of its adoption, they did restrict jurisdiction of the state to grant adoptions to where the petitioners, adoptive parents, reside. See Commissioner’s Note to Uniform Adoption Act § 4,9 U.L. A. 30 (1957). In so providing, the authors of the UAA, in their commissioner’s note, said:

The reason for so limiting jurisdiction is to place the emphasis on getting the best parents for the child. It is believed that the courts of the state where the parents reside will be better able to judge the adoptive home and adoptive parents than a court in a state foreign to the new parents.

In adopting the RUAA instead of the UAA, the Arkansas General Assembly allowed more flexibility in the state’s adoption procedure by not restricting Arkansas’s jurisdiction in such matters only to when and where the prospective or adoptive parents reside in this state. As we earlier noted, the state extended jurisdiction under § 56-205(a) to award an adoption also in situations when and where (1) the child to be adopted resides in Arkansas or (2) an agency in this state has the care, custody or control of the child. These two added situations to when this state obtains jurisdiction of adoption proceedings still insures — as does the UAA — our court’s opportunity to survey and judge the best interests and placement of the child to be adopted. At the same time, such jurisdictional requirements reflect the modern tendency for the state to seek greater assurance of protection to the child. To this effect, see generally R. Leflar, American Conflicts Law § 239 (1977). In this same vein, the trial judge in the instant case voiced concern over the prospects of when a child is born with a defect, left in this state and the biological mother and adoptive parents — residents of other states — abandon any further interest in the child or Arkansas adoption proceeding. Obviously, the General Assembly, in enacting § 56-205(a), widely has assured this state has a genuine interest or contact with at least one of the parties (adoptive parents, adopted child or local agency that has care and control of the child) involved before an adoption matter is filed or granted within its borders. Restricting the state’s jurisdiction to such instances, the General Assembly has placed our courts in a position to better ensure that the adopted child’s best interests are achieved.

In conclusion, we note the Pollocks’ argument that, assuming the trial court had no jurisdiction, it had otherwise acquired jurisdiction when it appointed the Pollocks as temporary guardians of Bradley. Upon such appointment, the Pollocks reason, citing In re Adoption of Johnson, 399 Pa. 624, 161 A.2d 358 (1960), that Bradley became a ward of the court, and, therefore a domicile of Hot Spring County, Arkansas. The Pennsylvania case cited is clearly distinguishable from the situation at hand, since there the child was a resident of that state and the question was simply which county in the state could decree the adoption. In further response to the Pollocks’ second argument, we point out that the Pollocks failed to raise such a theory below, and, therefore, we are in no position to address it on appeal. Even had this point been raised below, a serious question exists, based upon the record before us, concerning whether the trial court’s temporary guardianship order was actually valid. See Ark. Stat. Ann. §§ 57-826 — 827 (Supp. 1985).

Because we agree with the trial court’s holding it has no jurisdiction in this cause, we affirm.

Holt, C.J., and Hays and Newbern, JJ., concur.

Purtle, J., dissents.

David Newbern, Justice,

concurring. If the record in this case had shown that the child was present in Arkansas at the time the petition for adoption was filed, I would have concluded that the court had jurisdiction to enter an adoption decree. While it is true that the commissioners’ note referred to in the majority opinion discusses § 4 of the R.U.A.A., which is the same as Ark. Stat. Ann. § 56-205 (Supp. 1985), as if it were a jurisdiction granting statute, the caption given to it in Uniform Laws Annotated, and given it by the publishers of our statute, begins with the word “venue,” and “jurisdiction” is not mentioned in either the caption or the body of the statute. 9 U.L.A., Revised Uniform Adoption Act, § 4, p. 21 (1979). It is, at best, ambiguous.

The majority opinion suggests that either the adopting or natural parent must reside in this state, or that an Arkansas agency must have custody of the individual to be adopted, in order for our courts to have jurisdiction to grant an adoption. I believe that if we are to construe § 56-205 as a jurisdiction granting statute, then “residence of the individual to be adopted” must also be a basis for jurisdiction, as those words also appear in the statute. I do not know that a child born in Arkansas and present at the time the petition is filed is not a “resident” for this purpose.

If the ideas expressed in the majority opinion are to be law in this state, the general assembly should, after considering the laudable policies expressed in the majority opinion, adopt them and spell out the bases of jurisdiction for adoption. To my knowledge they have not yet done so.

Holt, C.J., and Hays, J., join.

John I. Purtle, Justice,

dissenting. Adoptions do not happen by accident. They are always prearranged. Therefore, I find nothing improper or illegal about arranging for an adoption in Arkansas, especially when the child is born in Arkansas as this child was.

It is true that the adoptive parents were from out of state. However, this fact alone should and does not prevent the proper agencies and courts from making a determination as to the suitability of the adoptive parents. In fact, the trial judge in this matter stated: “Mr. and Mrs__, I, as a judge, will officially find that you are very good, decent, and honorable people, and I find that you would give this child a good home, and be good parents . . . .” Had there been any doubt in the mind of the judge as to the suitability of these parents for the adoption, he could easily have referred the matter to Children and Family Services which would have in turn contacted the proper agency in New Jersey.

The mother signed an affidavit on February 11, 1986, that she was the mother of the child and that she agreed to the adoption. Part of her statement or affidavit, reads as follows:

I, [mother’s name], declare that I am the mother of infant -, a minor child, who was born on the 15th day of December, 1985, in Hot Spring, County, Arkansas, and that I am a legal resident of Hot Spring County, Arkansas.

The child had no voice in determining the site of his birth. He came into this life in Hot Spring County, Arkansas. Being a natural person he had to be a resident of somewhere. Having never been in Washington or New Jersey, it is logical to assume that he was a resident of Arkansas at the time of his birth and at the time the Hot Spring County Probate Court granted the temporary orders for both the guardianship and adoption of Bradley.

The Arkansas statute in question, Ark. Stat. Ann. § 56-205(a) (Supp. 1985), states in part: “Proceedings for adoption must be brought in the court for the place in which, at the time of filing or granting the petition, the petitioner or the individual to be adopted resides. . . .” (Emphasis added).

I am in disagreement with the majority’s statement of the issue. The opinion states: “In this appeal, this court is presented its first opportunity to interpret Arkansas’ Revised Uniform Adoption Act [cite omitted] to determine whether, under that Act, this state’s probate courts are empowered to grant an adoption when neither the adopting parents nor the child sought to be adopted are residents of this state.” As I see it, the question we should consider is whether our courts have the power to grant adoptions when either the child or one of the other parties was a resident of the state of Arkansas “at the time of the filing or granting of the petition.”

Clearly, our courts had the authority to grant the initial temporary orders in this matter because the child was, unquestionably, a resident of this state at the time the first petitions were filed. Implicit in the majority opinion is the assumption that the Hot Spring Probate Court lost its authority over the guardianship and adoption of this child by the court’s own action granting the prospective adoptive parents permission to take the child out of the state. The majority, moreover, questions the validity of the probate court’s temporary guardianship order, citing Ark. Stat. Ann. §§ 57-826 and 827 (Supp. 1985). These two statutes, however, concern the guardianship of incapacitated persons.

One of the concerns of the majority is that a child born with a defect might be left as a ward of this state. That is true, but many mentally and physically handicapped children are wards of the state. I hardly see how this concern enters into the present situation because the adoptive parents were appointed guardians of the child and were allowed to take the child to New Jersey with them. The child has been with them since soon after his birth. I suppose they could drive back into the state and throw the child out along side the road or dump him in some emergency room. However, the same possibility exists for other children born in Arkansas, or outside Arkansas for that matter.

It is my opinion that the instant this child was born he became a resident of Arkansas and a ward of the state. Unwed mothers frequently have a desire for privacy, and the state should not use these circumstances to hinder the orderly adoption process.

We should be ever mindful and on guard in matters relating to adoption of minors. However, the fact that someone paid the doctor and hospital bill, and an attorney’s fee, does not automatically cast a stigma on the adoption. The probate courts have the duty under the Arkansas statutes to require statements to be filed showing the amount paid to each and every person involving an adoption. I believe Ark. Stat. Ann. § 56-205(a) as enacted, and as it reads, is sufficient protection for young children subject to adoption and for the State of Arkansas.

I would reverse because this child unquestionably was a resident of the state of Arkansas “at the time of the filing of the petition.”

      Purtle, J., would grant rehearing.


author: Per Curiam.

text:
    Marvin DAVIS v. STATE of Arkansas
    736 S.W.2d 281
    Supreme Court of Arkansas
    Opinion delivered September 21, 1987

      Petitioner, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., signed by: William F. Knight, Asst. Att’y Gen., for appellee.
   Per Curiam.

The petitioner Marvin Davis pleaded guilty in 1985 to burglary and theft of property and he was sentenced to two consecutive twelve-year terms of imprisonment. In 1986, he filed a petition pursuant to Criminal Procedure Rule 37 to vacate the guilty pleas. Counsel was appointed to represent him. After a hearing, the trial court issued an order reducing the sentence imposed for theft of property to ten years. In all other respects, the petition was denied. No appeal was taken, and petitioner now seeks a belated appeal on the sole ground that a copy of the court’s order was not mailed to him.

The notation on the order denying the Rule 37 petition indicates that the order was filemarked and a copy sent to counsel for petitioner on December 12, 1986, two days after the hearing was held. Counsel states in an affidavit filed in response to the motion for belated appeal that he mailed the order to petitioner on or about December 13, 1986. Counsel further avers that he informed petitioner on the day the petition was denied that he had thirty days in which to decide whether to appeal and that petitioner said at that time that he did not wish to appeal and that he never informed him differently.

Petitioner does not contend that his attorney failed to inform him of his appeal right; in fact, he makes no mention of his having been represented by an attorney at the hearing in circuit court. It is not clear whether petitioner is basing his motion for belated appeal on the court’s mailing the order to his attorney rather than to him; but if this is the crux of his argument, the court fulfilled its obligation to notify him that the petition had been denied by promptly providing his attorney with a copy. Counsel in turn promptly mailed the order to the petitioner whom he had already informed of his appeal right. Under these circumstances, the burden was on petitioner to inform counsel of his desire to appeal.

This court will grant a motion for belated appeal of the denial of a petition for postconviction relief where the petitioner was not promptly provided a copy of the court’s order, see Porter v. State, 287 Ark. 359, 698 S.W.2d 801 (1985), but there is evidence here that petitioner was furnished a copy of the order. Moreover, there is evidence that he knew of his right to appeal and subsequently waived it by not taking responsibility for notifying his attorney of his desire to appeal. An attorney is not required to perfect an appeal when the petitioner who is aware of his appeal right stands silent. See Munn v. State, 278 Ark. 283, 644 S.W.2d 945 (1983).

Motion denied.


text:
    Arthur Lee THREETS, Jr. v. STATE of Arkansas
    CR 87-59
    736 S.W.2d 282
    Supreme Court of Arkansas
    Opinion delivered September 28, 1987

      Mark A. Colbert, for appellant.

      Steve Clark, Att’y Gen., by. Clint Miller, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Arthur Lee Threets, Jr., was convicted of aggravated robbery, theft of property, and of being a felon in possession of a firearm. He had twelve prior felony convictions. The jury sentenced him to a total of 100 years imprisonment.

His only argument on appeal, that using the term habitual criminal before the jury denied him a fair trial, was not raised below. Therefore, we need not consider it. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

Affirmed.


author: John I. Purtle, Justice. Darrell Hickman, Justice, Tom Glaze, Justice, Steele Hays, Justice,

text:
    CALICO ROCK SCHOOL DISTRICT #50, by its Board Members, David McNEILL, et al. v. Donnie SPEAK
    87-78
    736 S.W.2d 10
    Supreme Court of Arkansas
    Opinion delivered September 28, 1987

      G. Ross Smith & Associates, P.A., by: G. Ross Smith and W. Paul Blume, for appellant.

      Woodruff & Huckaby, by: Curt Huckaby, for appellee.
   John I. Purtle, Justice.

The trial court, sitting as a jury, found in favor of appellee, who had sued the appellant school district for breach of contract. On appeal it is argued that the trial court erred in finding that the appellant did not have the right to terminate the employment contract in order to preserve its financial stability. For reasons stated below we hold that the court properly entered the judgment.

The appellee, a custodial employee of the appellant, was employed by written contract for the 1984-85 school year. During the school year the superintendent became concerned that the school district would end the year at a deficit which is prohibited by statute; so, he requested and received permission from the school board to terminate appellee’s contract. The only reason for the termination was to save the school district $5,540.00. By terminating the appellee and taking other cost saving measures, the school district was able to end the year with a balance of more than $30,000.00.

The trial court found that the school district was under no obligation to enter into a written contract with noninstructional personnel. The court further held that, having chosen to do so, the school district was obligated to abide by the terms of the contract.

The appellant argues that the trial court’s finding was clearly erroneous because a school district cannot be held liable when it terminates employment contracts to prevent operating at a deficit. Appellant relies on Ark. Stat. Ann. § 80-509(7) (Repl. 1980), which provides in part as follows:

If in any school district it should be apparent that the school cannot be operated for the remainder of the school year without incurring more indebtedness than that represented by outstanding bonds, and those that may be issued for buildings, and equipment for the school buildings, purchasing sites, and repairing school buildings, or the improvement of sites, it shall be the duty of the school directors to close the school and cease paying the teachers for the remainder of that fiscal year, and each contract made with the teachers shall be subject to that contingency, and the district shall not be liable for teachers [’] salaries for the time the school is so closed.

The trial court correctly held that it had no authority to vary the terms of the parties’ contract. McLeod v. Myer, 237 Ark. 173, 372 S.W.2d 220 (1963). Ark. Stat. Ann. § 80-509 (Repl. 1980) states that an employment contract between teachers and school districts may be terminated in the event the district is unable to meet its financial obligations. However, there is no statutory requirement that school custodians be employed by contract (see § 509(d)), much less that their contracts be subject to such contingency. Having elected to enter into a contract which did not provide for such a contingency, the school district and the appellee were equally bound to honor its terms.

Affirmed.

Hickman and Glaze, JJ., concur.

Hays, J., dissents.

Darrell Hickman, Justice,

concurring. I agree with the result reached in this case. However, I would not want the impression left that a superintendent and school board are powerless during a school term to make cuts to keep a district solvent. See Ark. Stat. Ann. § 80-509 (Repl. 1980).

Tom Glaze, Justice,

concurring. I concur. I would decide this case simply on the basis that the trial court’s findings and decision were not clearly erroneous and should be affirmed. In its judgment, the court found the proof showed that the school district (appellant) ended the year in the “black”, having enough money to have continued appellee’s employment for the full term of his contract. The record specifically reflects the appellant had sufficient funds to meet its obligations at the time it dismissed appellee and, in fact, the appellant never operated one day in the “red” during the school-year term in question. If the proof had been otherwise, I would agree the appellant would have authority to act so as to avoid insolvency. However, based upon the record before us, I believe this court must affirm.

Steele Hays, Justice,

dissenting. I believe the majority, like

the trial court, is influenced by the fact that the school district managed to avoid a deficit and finish the school year in the black. That seems to me to be beside the point.

It is clear from the letter and spirit of the statutes dealing with school financing that the legislature meant to delegate the power to school districts to take extraordinary, and timely, measures to avoid operating at a loss. The actions of the superintendent were, I think, entirely consistent with those sound objectives and the district ought not to be penalized for accomplishing what the legislature so clearly mandated. I would reverse.


text:
    Robert Harold MUNNERLYN v. STATE of Arkansas
    CR 87-61
    736 S.W.2d 282
    Supreme Court of Arkansas
    Opinion delivered September 28, 1987

      Gregory E. Bryant, for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

A jury found the defendant guilty of aggravated robbery, theft of property, and criminal attempt to commit capital murder. His respective sentences were life, thirty years, and sixty years. He presents three arguments on appeal: (I) the trial court erred in refusing to suppress the defendant’s confession; (II) the trial court erred in failing to provide the appellant with a hearing on the motion to suppress the warrant; and (III) the trial court erred in refusing to grant a mistrial after a witness made an implied reference to defendant’s prior convictions. We are not persuaded that any of the three arguments requires reversal.

On December 5,1985, the defendant was arrested pursuant to a warrant supposedly issued by the Little Rock Municipal Court charging the appellant with two counts of aggravated robbery, one count of theft of property in excess of $2,000.00, and one count of criminal attempt to commit capital felony murder. Later that day he gave statements to law enforcement officers implicating himself in the above events as well as other unrelated criminal offenses.

Various prosecutions ensued as a result of the confession, and prior to his trials, the defendant filed the same motions to suppress his confession in each case. Only one omnibus hearing was set. After witnesses were heard and evidence presented, the trial court determined that the confession was voluntarily given and admissible. Defendant appealed this decision after being convicted of three aggravated robberies and we affirmed the trial court in Munnerlyn v. State, 292 Ark. 467, 730 S.W.2d 895 (1987).

Defendant again argues that his confession was involuntary, presenting the same arguments from the same omnibus hearing considered in Munnerlyn v. State, supra. We had a somewhat similar situation in Gray v. State, 252 Ark. 404, 479 S.W.2d 560 (1972), where we stated:

It is also contended that the confession, just mentioned, was involuntarily made, being coerced by the officers. This same allegation, involving the same confession, was made in an earlier case against Gray, and we upheld the finding of the trial judge that the confession was voluntarily given. No evidence strengthening the contention so as to invalidate the confession was given in the instant case, and in fact, only one paragraph is devoted to this argument.

Since no additional authority, facts, or reasons are shown in appellant’s brief which would cause us to view our prior determination of voluntariness of the confession to be suspect, we again affirm the trial court’s decision.

Defendant also argues that the trial court erred in not granting him a hearing on his motion challenging his arrest warrant issued by the municipal court. Since no evidence was offered at the omnibus hearing or at trial concerning the arrest warrant, and the arrest warrant is not abstracted, we are unable to consider this argument on appeal. See Sutherland v. State, 292 Ark. 103, 728 S.W.2d 496 (1987).

Defendant’s last point of appeal arises from a state witness’ testimony, “I went down to the Arkansas State Police files and checked, and sure enough, there was a card on file bearing that name, and I compared those with this, inked, latent impressions that were submitted to me.” Before we will reverse under such circumstances, it must be shown that actual prejudice resulted from the improper conduct. In Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984), the officer testified that Hogan had a prior arrest record and the record contained fingerprints. This Court found that the harm, if any, was insufficient to justify the extreme remedy of a mistrial. Neither has the appellant in this case demonstrated prejudice from this remark. Additionally, an objection to this improper answer was not made until after the witness was passed to the defense; therefore, it was not made at the first opportunity and cannot be considered at this time. Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986).

Pursuant to Supreme Court Rule 11(f) and Ark. Stat. Ann. § 43-2725 (Repl. 1977), we have examined all other objections decided adversely to the appellant and found no error. Therefore, the case will be affirmed.