author: Bradley D. Jesson, Chief Justice. Tom Glaze, Justice,

text:
    Don CHEREPSKI v. Donald WALKER; Andrew McDonald; the Roman Catholic Diocese of Little Rock, Arkansas: Andrew J. McDonald, Bishop of the Roman Catholic Diocese of Little Rock, Arkansas; The Roman Catholic Church; and Susan Walker
    94-1329
    913 S.W.2d 761
    Supreme Court of Arkansas
    Opinion delivered January 16, 1996

      Mitchell, Blackstock & Barnes, by: Jack Waggoner 111; and John D. Ogles, for appellant.

      T. Martin Davis, for appellees Donald and Susan Walker.

      Williams & Anderson, by: Leon Holmes and Katharine R.

      Cloud, for appellee Andrew J. McDonald, Bishop of the Roman Catholic Diocese of Little Rock, Arkansas.
   Bradley D. Jesson, Chief Justice.

This appeal poses the basic question of whether a former husband’s lawsuit for breach of fiduciary duty, clergy malpractice, intentional infliction of emotional distress, and negligence is barred by the General Assembly’s abolition of alienation of affection actions. See Ark. Code Ann. § 16-118-106 (Cum. Supp. 1993). The appellant, Don Cherepski, brought suit against Donald Walker, a Catholic priest, Bishop Andrew McDonald, individually and as agent for the Roman Catholic Diocese of Little Rock, Arkansas, and the Roman Catholic Church, and Susan Walker, appellant’s former wife. His amended complaint alleged that, while serving as Chancellor of the Diocese and in charge of the Diocesan Marriage Tribunal, Father Walker began an adulterous affair with Susan. As a result of the appellees’ actions, Cherepski claimed he was left emotionally and spiritually devastated.

Bishop McDonald and the Walkers filed separate motions to dismiss, each alleging that Cherepski’s suit amounted to a claim for alienation of affection. Bishop McDonald additionally asserted that the claim for clergy malpractice was not recognized in Arkansas and that the claims were barred by the First Amendment, the doctrine of charitable immunity, and the statute of limitations. The trial court granted the appellees’ motions to dismiss, yet refused the Walkers’s request to impose sanctions under Ark. R. Civ. P. 11 against Cherepski, as well as Cherepski’s counter-request for sanctions against the Walkers. Cherepski brings seven points on direct appeal, and the Walkers cross-appeal the trial court’s refusal to award Rule 11 sanctions against Cherepski. On direct appeal, we treat the trial court’s dismissal of the claims as a granting of summary judgment. We affirm the granting of summary judgment in Bishop McDonald’s favor on the grounds that the claims against him were barred by the statute of limitations. We conclude that the claims against the appellees for interference with Cherepski’s annulment proceedings are outside our jurisdiction. We affirm the granting of summary judgment in the Walkers’ favor on the basis that the suit essentially amounted to an action for alienation of affection. In so holding, it is unnecessary to address Cherepski’s remaining points on appeal. On cross-appeal, we affirm the trial court’s refusal to impose sanctions against Cherepski.

Fads

The facts as alleged in Cherepski’s amended complaint are as follows. Don and Susan Cherepski were married in 1972. Five children were born to the marriage. In 1986, Susan became employed with the Roman Catholic Diocese of Little Rock. In September of 1988, Donald Walker, a priest, arrived at the Little Rock Diocese from the Philadelphia Diocese, where he had been Chancellor. Upon Cherepski’s “information and belief,” the Chancellors of the two cities were exchanged due to each Chancellor’s alleged involvement with women in his respective Diocese. Walker became Chancellor to Bishop McDonald, a position only second to the Bishop in authority in the Diocese. He was also placed in charge of the Diocese Marriage Tribunal, having authority over Catholic marriages in the Diocese. Shortly after Walker’s arrival in Little Rock, he began spending his days off with Susan, taking all day trips out of town with her, and staying at the Cherepski residence several nights a week until 10:30 or 11:00 p.m., drinking alcohol to the point of intoxication. On one occasion in January of 1989, while appellant was stranded in a Dallas ice storm, Walker spent the night at the Cherepski home with Susan. On another occasion, Walker stayed the night with the Cherepskis at their Hot Springs lakehouse. Walker and Susan stayed up until the “wee hours drinking and cavorting in the bedroom,” and Susan did not come to bed that evening. While Cherepski felt that Walker’s conduct “seemed highly improper,” he had no proof at this time that he was having an affair with Susan.

Cherepski and his mother, Edith Cherepski, became increasingly concerned over the accelerating “friendship” between Susan and Father Walker. Although Walker’s Little Rock assignment was scheduled to end in 1989, Bishop McDonald extended the assignment through 1990. In September of 1989, Susan sued the appellant for divorce and moved into a home owned and furnished by the Diocese. According to Cherepski, it was “shortly thereafter” when he met with Bishop McDonald and pleaded for his assistance in “removing Walker from his family life.” The Bishop refused to discuss the matter, and later denied having met with Cherepski about the problem. During this time, Edith Cherepski wrote numerous letters to the Bishop asking him to intervene. According to Bishop McDonald, Edith was not a credible source. The complaint further alleged that, after Susan had filed for divorce, and approximately six months prior to the time assignments were to be made in June of 1990, Bishop McDonald reassigned Walker to St. Theresa’s Parish, the Cherepskis’s church. On March 6, 1990, Bishop McDonald called Cherepski at work and demanded to meet with him. The two met later that day, at which time the Bishop “harassed and intimidated” him, insisting that he not call any priests as witnesses at his upcoming divorce trial.

The Cherepskis were granted a divorce on the appellant’s counterclaim on October 11, 1990. Susan was awarded custody of the couple’s five children. She subsequently took the children to Albuquerque, New Mexico, without telling Cherepski, who located them two weeks later, only to learn that Susan and Walker had married. Cherepski alleged that this “chain of events” confirmed what he had suspected, but could not prove. Cherepski successfully sought custody of the children and eventually remarried.

Cherepski alleged that Bishop McDonald had a fiduciary duty to promote his spiritual well-being and to refrain from taking any action that would interfere with his spiritual well-being. Cherepski further alleged that the Bishop breached this duty owed him, committed clergy malpractice, and was negligent in allowing various rendezvous between Susan and Father Walker to take place at the expense of the Diocese when he was fully aware of their relationship. It was alleged that Bishop McDonald, who had supervisory authority over Father Walker, was negligent in failing to supervise and shepherd his actions. Cherepski also claimed that the course of conduct engaged by Bishop McDonald constituted the tort of intentional infliction of emotional distress.

Cherepski further asserted that Father Walker, as Chancellor, head of the Diocesan Marriage Tribunal, and later as priest at Cherepski’s church, had a fiduciary duty to promote his spiritual well-being and to refrain from taking any action that would interfere with his spiritual well-being. Cherepski alleged breach of fiduciary duty, negligence, and intentional infliction of emotional distress. The complaint further alleged that Susan Walker was an orchestrator, direct participant, co-conspirator, and that she had aided and abetted in all other actions alleged. He also claimed consistent and malicious interference with his attempts to obtain an annulment, resulting in his inability to receive sacraments or to have his remarriage recognized. Cherepski sought damages for emotional pain and suffering, punitive damages, and investigation and attorney’s fees.

Bishop McDonald and the Walkers filed separate motions to dismiss. The Walkers attached affidavits and other exhibits to their motion and sought sanctions against Cherepski under Ark. R. Civ. P. 11. Cherepski submitted separate responses to the motions and filed a counter-motion for Rule 11 sanctions against the Walkers, which also included attached exhibits. Following a hearing, the trial court entered an order dismissing Cherepski’s complaint with prejudice. The trial court entered a subsequent order denying the Walkers’s motion and Cherepski’s counter-motion for Rule 11 sanctions. The parties filed timely notices of appeal.

I. Summary judgment

As the parties presented affidavits and other matters outside the pleadings to the trial court on the motion to dismiss, we will treat the motion as one for summary judgment. See Ark. R. Civ. P. 12(b) and (c); Rankin v. Farmers Tractor & Equip. Co., 319 Ark. 26, 888 S.W.2d 657 (1994); Cross v. Coffman, 304 Ark. 666, 805 S.W.2d 44 (1991). Summary judgment should only be granted when there are no genuine issues of material fact and when the case can be decided as a matter of law. Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995). We limit our review to examining the evidentiary items presented below and to determining whether the trial court correctly ruled that those items left no material factor in dispute. Id. We view the facts in the light most favorable to the party against whom the motion was filed, and all doubts and inferences are resolved against the moving party. Id.

II. Claims against Bishop McDonald

A. Statute of limitations

In his motion to dismiss filed below, appellee Bishop McDonald asserted that Cherepski’s case was barred by the three-year statute of limitations for tort actions. Ark. Code Ann. § 16-56-105 (1987). It is well settled that a defense of limitation is an affirmative defense. Id.

When it is clear on the face of the complaint that the plaintiffs action is barred, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was tolled. Id., citing First Pyramid Life Ins. Co. v. Stolz, 311 Ark. 313, 843 S.W.2d 842, cert. denied, 114 S. Ct. 290 (1992). On appeal, Cherepski asserts that the statute was tolled due to Bishop McDonald’s fraudulent concealment. While such concealment does suspend the running of the statute of limitations, the suspension remains in effect only until the party having the cause of action discovers the concealment or should have discovered it by the exercise of reasonable diligence. Id. Cherepski filed this lawsuit on August 16, 1993. Thus, for his complaint to have been timely filed, he must neither have known, nor have been able to discover through reasonable diligence, the alleged fraudulent concealment on the part of Bishop McDonald before August 16, 1990.

The complaint alleges that, in September of 1988, Bishop McDonald, aware of the fact that Father Walker had allegedly been involved in sexual misconduct at the Philadelphia Diocese, brought him to the Little Rock Diocese. In 1989, Bishop McDonald extended Walker’s assignment. In late 1989 or early 1990, Bishop McDonald assigned Father Walker to Cherepski’s church, St. Theresa’s. On March 6, 1990, Bishop McDonald had a conversation with Cherepski in which he asked Cherepski not to call any of his priests as witnesses in the upcoming divorce trial. On the face of the complaint, it appears that these allegations against Bishop McDonald are barred. Thus, the burden shifted to Cherepski to prove, by a preponderance of the evidence, that the statute was tolled.

On appeal, Cherepski contends that “examples” of Bishop McDonald’s concealment include his denial in a 1990 deposition that he had any knowledge of the relationship between Father Walker and Susan, and Edith Cherepski’s letter and “other evidence” showing that the statement in his deposition was false. However, paragraph 8 of Cherepski’s amended complaint states that he asked Bishop McDonald to intervene shortly after September of 1989 “to help remove Walker from his family’s life.” Similarly, Edith Cherepski’s letter to Bishop McDonald, in which she complained that Father Walker “is apparently involved in breaking up” the Cherepski family, is dated November 17, 1989. The record simply does not support Cherepski’s assertion of fraudulent concealment on the part of Bishop McDonald, and he cannot avail himself of the benefit of tolling of the statute on this basis. See Alexander v. Flake, supra. The evidence leaves no room for a reasonable difference of opinion that the statute barred these claims against Bishop McDonald; therefore, the trial court correctly ruled that no material factor was left in dispute. Thus, the only remaining claim against Bishop McDonald is the allegation that he and the Walkers have interfered with Cherepski’s attempts to have his marriage to Susan annulled.

III. Claims of interference with annulment proceedings

Cherepski alleges that, since October of 1990, Bishop McDonald and the Walkers have consistently and maliciously interfered with his attempts to obtain an annulment. Because of this interference, Cherepski complains that he is unable to have his remarriage recognized or to receive sacraments. These claims are outside our jurisdiction, as we will not entangle ourselves in ecclesiastical matters. Gipson v. Brown, 295 Ark. 371, 749 S.W.2d 297 (1988); Kinder v. Webb, 239 Ark. 1101, 396 S.W.2d 823 (1965). Nowhere in Cherepski’s amended complaint does he specifically allege a conspiracy on the part of appellees to have him excommunicated from the Catholic Church; rather, his claims are purely religious in nature, as the record indicates that the Tribunal of the Diocese of Dallas adjudicated his annulment petition. As in Gipson, the record in this case fails to reveal a compelling state interest that would justify application of our laws in light of the constitutional proscriptions against interference with the Free Exercise Clause of the First Amendment. Because Cherepski’s claims of interference with his annulment proceedings and his ability to receive communion involve matters of church doctrine and discipline, we will not address them.

IV. Claims against the Walkers

Through the passage of Act 46 of 1989, the General Assembly abolished alienation of affection and criminal conversation as causes of action. See also Ark. Code Ann. § 16-118-106 (Cum. Supp. 1993). While the Walkers claim that Cherepski’s claim is one for alienation of affection disguised under different labels, Cherepski asserts that the legislature’s abolishment of this tort does not bar his cause of action. Particularly, Cherepski contends that his complaint presents “a question of fact as to whether a fiduciary relationship existed,” and that it states causes of action for clergy malpractice and outrage.

In defending his claims, Cherepski cites Destefano v. Grabian, 763 P.2d 275 (Colo. 1988). In that case, a husband sued a Catholic priest and the Diocese of Colorado Springs, alleging that the priest, from whom the husband and his wife had consulted for marriage counseling, had induced his wife into engaging in sexual relations with him. The husband asserted claims for negligence, outrage, and breach of fiduciary duty. The trial court dismissed the action, and the court of appeals affirmed. The Colorado Supreme Court granted certiorari on two issues: (1) whether the state’s heart balm statute barred an action against a person who assumes the role of marriage counselor when the counseling relationship results in consensual sexual relations between a counselor and a counselee; and (2) whether the free exercise clause of the First Amendment to the United States Constitution prohibits tort liability for conduct which arose in the context of a counseling relationship between a clergyman and members of his congregation. The Colorado Supreme Court agreed that the husband’s claims for negligence and outrage were essentially claims for alienation of affection and criminal conversation and were properly dismissed. The Destefano court reversed, however, on the fiduciary duty issue, concluding that the priest, given the nature of the relationship as a marriage counselor to the couple, owed a fiduciary duty; that is, he had a duty not to engage in conduct which might harm the marital relationship.

We are not called upon to decide whether a cause of action would be cognizable in Arkansas in instances involving a counseling relationship, and the holding in Destefano was clearly premised on the priest’s role as a marriage counselor, not his role as a priest. Thus, Destefano is simply not on point here, as it is undisputed that Father Walker was not acting as the Cherepski’s marriage counselor. We will now examine the individual claims against Walker.

A. Fiduciary duty

In his brief, Cherepski repeatedly maintains that the question of whether a fiduciary duty exists is a question of fact. This is an incorrect statement of the law. The question of what duty is owed is always a question of law. First Commercial Trust Co. v. Lorcin Eng’g, 321 Ark. 210, 900 S.W.2d 202 (1995); Keck v. American Employment Agency Inc., 319 Ark. 294, 652 S.W.2d 2 (1993). Cherepski asserts that, as a devout Catholic, his trust was imposed in the integrity of Father Walker, and that Walker had a duty to promote his spiritual well-being and refrain from taking any action which would interfere with his spiritual well-being.

A person is ordinarily not liable for the acts of another unless a special relationship exists between the two parties. Id. A person standing in a fiduciary relationship with another is subject to liability to the other for harm resulting from a breach of the duty imposed by the relationship. Restatement (Second) of Torts § 874 (1979); see also Destefano v. Grabian, supra. Cherepski has not alleged that he entrusted any matter to Father Walker while Walker served as Chancellor or as judge of the Diocesan Marriage Tribunal. While Walker was eventually assigned to Cherepski’s church, he did not become Cherepski’s priest until after Susan had filed for divorce. Cherepski cites Adams v. H.L. Moore, 385 S.E.2d 799 (N.C.App. 1989) and Nelson v. Dodge, 76 R.I. 1, 68 A.2d 51 (1969), in support of his position that Walker owed him a duty; however, both of these cases involved disputes over property transactions. We conclude that Cherepski’s claim for breach of fiduciary duty is nothing more than a claim for alienation of affection in disguise. Because the legislature abolished this tort in 1989, there can be no violation of a nonexistent right. Other courts faced with claims for breach of fiduciary duty in similar factual settings have reached the same result. See e.g., Dausch v. Ryske, 52 F.3d 1425 (7th Cir. 1994); Bladen v. First Presbyterian Church, 857 P.2d 789 (Okla. 1993); Strock v. Pressnell, 527 N.E.2d 1235 (Ohio 1994).

B. Clergy malpractice

Cherepski further contends that the trial court erred in dismissing his claim for clergy malpractice against Father Walker. On appeal, he characterizes this claim as a “negligence-based” cause of action. Arkansas does not recognize clergy malpractice as a cause of action. Several other courts confronted with this issue have specifically refused to recognize clergy malpractice as a separate, cognizable cause of action. See, e.g. Destefano v. Grabian, supra; Schieffer v. Catholic Archdiocese, 508 N.W.2d 907 (Neb. 1993). Other courts have held that clergy malpractice was not available under the particular facts alleged. See, e.g. Bladen v. First Presbyterian Church, supra; Hester v. Barnett, 723 S.W.2d 544 (Mo. App. 1987) see also John F. Wagner, Annotation, Cause of Action for Clergy Malpractice, 75 A.L.R.4th 750 (Supp. 1995). As clergy malpractice is not cognizable in this state, summary judgment was proper as a matter of law.

C. Outrage

We recently set out the elements of the tort of outrage in Perrodin v. Rooker, 322 Ark. 117, 908 S.W.2d 85 (1995). To establish a claim for outrage, or intentional infliction of emotional distress, a plaintiff must prove: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous and utterly intolerable in a civilized community; (3) the conduct was the cause of the plaintiff’s distress; and (4) the plaintiff’s emotional distress was so severe in nature that no reasonable person could be expected to endure it. Id. at 121.

While Cherepski couches his amended complaint in terms of intentional infliction of emotional distress, it is clear that his complaint is in essence an action for alienation of affection. The complaint is replete with references to the accelerating “friendship” between Father Walker and Susan, their alleged adulterous affair, Cherepski’s and Susan’s eventual divorce, and Cherepski’s resulting emotional pain and suffering. The real character of Cherepski’s claim is of an amatory tort. His attempt to label his claim otherwise does not remove it from its true characterization as a claim for alienation of affection, which the legislature has chosen to abolish as a cause of action. Other courts have treated similar claims for outrage as veiled attempts to bring an action for alienation of affection. Destefano v. Grabian, supra; Bladen v. First Presbyterian Church, supra; Wilson v. Still, supra; Strock v. Pressnell, supra. We conclude that the trial court correctly ruled that Cherepski’s claims against the Walkers left no material factors in dispute.

V. Cross-appeal Rule 11 sanctions

The Walkers cross-appeal the trial court’s denial of sanctions against Cherepski under Ark. R. Civ. P. 11. The trial court also denied Cherepski’s counter-motion for sanctions against the Walkers, but Cherepski does not appeal this ruling. In reviewing a trial court’s Rule 11 determination, we do so under an abuse of discretion standard. Ward v. Dapper Dan Cleaners & Laundry, Inc., 309 Ark. 192, 828 S.W.2d 833 (1992). The Walkers contend that Rule 11 sanctions should have been imposed against Cherepski and his counsel since they knew, or should have known, that all amatory actions were abolished in 1989. The Walkers further assert that the fact that Cherepski’s former wife Susan was named as a defendant proves a vengeful motive.

Under Rule 11, an attorney signing a pleading, motion, or other paper on behalf of a party constitutes a certificate that he or she has made a reasonable inquiry (1) into the facts supporting the document or pleading; (2) into the law supporting the document to ensure that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that he or she (3) did not interpose the document for any improper purpose, such as to harass, to cause unnecessary delay, or to increase the cost of litigation. Id. at 194-195, 828 S.W.2d 833. Since the General Assembly abolished alienation of affection as a cause of action in 1989, we have not had occasion to consider whether claims such as those asserted in this case are barred by the legislature’s abolition of amatory torts. The parties have cited numerous cases from other jurisdictions who have considered similar questions. In sum, we cannot say that the trial court abused its discretion in denying the request for sanctions against Cherepski.

Affirmed on direct appeal and cross-appeal.

Special Justices Gene Harrelson, Worth Camp, Jr., and Jill R. Jacoway join in this opinion.

Glaze, J., concurs.

Newbern, Corbin, and Brown, JJ., not participating.

Tom Glaze, Justice,

concurring. The majority opinion correctly concludes that Mr. Cherepski’s complaint is in essence an action for alienation of affection, and such an action was abolished by Act 46 of 1989, now compiled as Ark. Code Ann. §16-118-106 (Supp. 1993). In my view, this case ends when this court makes these holdings. Nonetheless, the majority opinion further discusses issues concerning the statute of limitations, claims of negligence and tort of outrage, breach of fiduciary duty, and clergy malpractice. While I believe the majority opinion’s discussions of these issues are unnecessary, I do join in the majority court’s ultimate decision upholding the trial court’s order of dismissal of Cherepski’s complaint.

       The Walkers did not specifically plead the defense of limitations. While they attempt to defer to Bishop McDonald’s argument on this point on appeal, they were required to have pleaded this defense below. Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1969) (where statute of limitations was not pleaded, it cannot be relied upon even though the face of the record indicated it might have been a good defense if pleaded).


source: Caselaw Access Project

author: Bradley D. Jesson, Chief Justice.

license: Public Domain

text:
    Billy PIKE v. STATE of Arkansas
    CR 95-949
    912 S.W.2d 431
    Supreme Court of Arkansas
    Opinion delivered January 16, 1996

      William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Bradley D. Jesson, Chief Justice.

The appellant, Billy Pike, was convicted of the capital murder of Sunday Stanfield and sentenced to life imprisonment without parole. His sole point on appeal is a challenge to the sufficiency of the evidence. We affirm.

On appeal, Pike raises specific points in support of his position that the State’s evidence was insufficient to convict him of the capital murder charge. He argues that the State’s evidence failed to exclude the substantial possibility that another man, Bobby Chappie, killed the victim. He also contends that a certified docket sheet admitted into evidence proved that Michelle Basey, the State’s eyewitness, was in custody at the time she claimed to have witnessed the murder. Finally, he maintains that there was insufficient evidence presented that he killed the victim. In reviewing the motions for directed verdict that Pike made below, we conclude that only the last of these specific points was preserved for our review. At the close of the State’s case, counsel for Pike stated as follows:

We’ll move for a directed verdict. Notwithstanding the credibility of some of the State’s witnesses, Your Honor, I don’t believe the State has shown sufficient evidence to show any kind of premeditated or deliberated purpose on the part of [Pike]. I guess, taking Miss Basey’s testimony in the best light, at the very most we have from Miss Basey that she was in the basement with one shot, one shot that she testified to. She did not see Sunday Stanfield fall or have impact from, but she was standing right up in front of Billy Pike. And that was the only shot that she saw fired. She testified that she could not even tell us that it had hit its target, and then that she left that basement, and she heard one more shot. Other than that, we don’t have anything causally connecting any incident or anything that Billy Pike did here. At the very most we got one shot that the State’s best witness cannot say had any impact at all. So we don’t even know if he shot her from what the State’s presented today or presented in their case in chief.

(Following the deputy prosecutor’s response, counsel for Pike continued as follows:

Your Honor, taking the State’s case in its best light, I only recall hearing one shot after she left that basement. State says well, that obviously they had a third shot. They’re speculating at best in regards to what had happened. The testimony of Miss Basey was Miss Stanfield was standing straight up, looking at him when he shot her in the head. There’s no consistency with that testimony, and the testimony of the medical examiner was that she was shot two times behind the left ear. That is absolutely inconsistent with that testimony at all. She testified she didn’t know what happened after she left that basement, and none of us know what happened after she left that basement. What the State has presented is that they’ve got a body in a basement. They’ve got what they think is the killer down there. They have him maybe firing a gun at the person, but not in the right direction that the medical testimony states, and that’s it. And they want this Court to take all of that, and swallow it and say well, then, he must have been, only fired three times at her. And taking it, the inconsistencies in that testimony, it must have been four times, because the first' one he shot when she was standing straight up, and he couldn’t have physically have done what the medical examiner says happened, strike her two times behind the left ear.

At the close of all the evidence, Pike renewed his motion as follows:

I don’t believe the State has shown any premeditated or deliberated purpose. Here at best, taking the testimony, what we would believe at this point, would be an incredible not a credible witness, that being the testimony of Miss Basey based upon the evidence, both in the State’s case and in the Defense’s case. Taking that evidence in its best light, Miss Basey said that she saw one shot, That Miss Stanfield was standing straight up, looking at Mr. Pike at the time a shot was fired. The testimony of the medical examiner was clearly that the weapon, the bullets hit her in the back of the head, and that Miss Basey left out after one shot had been fired. And her testimony was she heard one more shot. She doesn’t know anything about if it was at anybody or not at anybody, but that there is insufficient evidence to show that there’s any evidence to show that Mr. Pike killed this woman with any nature, premeditated or anything.

It is well-settled that parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of the objections and arguments presented at trial. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995); Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995). This is true even in cases where the sentence is life without parole, as our duty is only to examine the record for error on objections decided adversely to the appellant, not to address arguments that might have been made. Childress v. State, supra; see also Ark. Sup. Ct. R. 4-3(h). Nowhere in Pike’s motions for directed verdict did he mention Bobby Chappie’s name, much less an argument that the State’s proof failed to exclude the reasonable hypothesis that Chappie killed the victim. Nor did Pike present the argument that the certified docket sheet admitted into evidence proved that Michelle Basey was in custody at the time she claimed to have witnessed the murder. Thus, the only point we will consider is whether the State presented sufficient evidence that Pike committed the murder.

We have recently repeated our guidelines for reviewing challenges to the sufficiency of the evidence in Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995):

In a challenge to the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the State and sustains the judgment of conviction if there is substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). In reviewing the sufficiency of the evidence, we need only consider evidence in support of the conviction. Id.

322 Ark. at 654, 910 S.W.2d at 686. Circumstantial evidence may constitute substantial evidence when every other reasonable hypothesis consistent with innocence is excluded. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994); Sheridan v. State, 313 Ark. 23, 852 S.W.2d 560 (1992); Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). Whether a reasonable hypothesis exists is for the trier of fact to resolve. Id; see also Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995); Walker v. State, 313 Ark. 478, 855 S.W.2d 932 (1993).

The evidence, viewed in the light most favorable to the State, is as follows. On the morning of Tuesday, March 15, 1994, Bruce Stanfield found the body of his sister, Sunday Stan-field, in the basement of their mother’s home at 1228 West 35th Street in Little Rock. The basement, according to Bruce, was a hideaway where he and others in the neighborhood smoked crack cocaine. Ollie Stanfield, the victim’s mother, last saw her daughter around noon on Sunday, March 13. Officer Connie Simmons of the Little Rock Police Department arrived at the scene at approximately 11:00 a.m. on March 15 and located the victim lying in a fetal position with her left hand in her pocket. Officers recovered a copper projectile and two spent .38 shell casings near the body. The victim’s clothing was also collected, which included a black t-shirt, blue pants, and a bra.

Michelle Basey testified that she was a crack addict when she met the victim at Cathy Morrison’s house on a Sunday. The three smoked crack supplied by the victim. The victim left, telling Basey that she would be on Martin Luther King Street. Basey found the victim later that night with her sister, Odetta Stanfield, and the appellant, Billy Pike. The victim was dressed in the same clothing she was wearing when her body was discovered. The four ended up in a basement of a house, where Odetta got them some drugs then left. Basey stayed and began smoking crack cocaine. Pike and the victim were talking when Pike yelled, “Bitch you owe me.” Basey, who had been a prostitute, understood this statement to mean that the victim owed Pike a sex act because he had paid her money. The victim kneeled down and began performing oral sex on Pike. When the victim stood back up, Pike slapped her. A fight broke out, and Pike pulled out a gun. Pike, who was facing the victim, pointed the gun to the victim’s head and shot her. After Pike fired this shot, the victim remained standing. Basey ran out the door. As she was running, she heard another gunshot. Basey did not see Bobby Chappie in the basement on the night the victim was shot. She did not go to the police that evening because she was scared, high on crack cocaine, and there was a warrant out for her arrest. Nearly one and one half months later, on April 28, Basey contacted police claiming to have been raped by Pike in a separate incident. At this time, she told police about witnessing the shooting of Sunday in the basement.

Detective James Chandler of the Little Rock Police Department initially developed Bobby Chappie as a suspect in the murder. Accompanied by counsel, Chappie turned himself in at the police department and denied any involvement in the crime. Chappie testified at trial that he knew the victim from the streets. He admitted that he had dealt drugs out of the home of a woman named Gwen Simmons. He further admitted to having had “run-ins” with Sunday over drugs and to having threatened her at her mother’s house. He also stated that he had shot a gun into Simmons’s house. Chappie specifically denied shooting Sunday Stanfield. He testified that he did not think it unusual for the same gun to have been used to shoot into Simmons’s house and to have killed Sunday. According to Chappie, when a gun came up missing, he would just get another one. This was something that “happened every day.” Detective Chandler offered similar testimony, stating that it was his experience that guns go through as many as 15 people, especially if used in a crime, and are often traded for drugs.

Dr. Charles Kokes, Associate Medical Examiner of the State Crime Lab, performed the autopsy on the victim. It was his opinion that the victim died from multiple gunshot wounds. One bullet entered the skull above the victim’s left ear and exited her cheek. According to Dr. Kokes, the victim could have remained standing after sustaining this wound. Bruising around this wound indicated that the victim was alive at the time of impact. A second bullet entered behind the victim’s left ear and had been delivered at close range. It was Dr. Kokes’s opinion that the victim could not have remained standing after this wound. A third wound was a superficial wound caused when a bullet grazed the front of the victim’s lower left leg. Cocaine was present in the victim’s blood and urine. The small pipe in her hand contained cocaine residue.

We do not decide whether the State’s witnesses were credible. State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992). The jury has the right to believe all or any part of a witness’ testimony. Id. The jury obviously believed Basey’s eyewitness account and Chappie’s denial that he was involved in the shooting over Pike’s theory of the case. Stated another way, the jury was able to exclude every other reasonable hypothesis consistent with Pike’s innocence. Basey’s account can also be reconciled with the medical testimony. Basey said the victim remained standing after Pike pointed the gun to her head and shot; Dr. Kokes testified that the victim could have remained standing after sustaining one of the bullet wounds to the head. She heard a second shot; the victim was shot more than once. Basey said the victim had been smoking crack cocaine prior to her death; autopsy results indicated the presence of cocaine in the victim’s blood and urine. Basey confirmed that the clothes the victim was wearing when her body was discovered were the same as those she was wearing at the time of the shooting. In sum, the State presented sufficient evidence that Pike committed the murder.

The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and no prejudicial error has been found which would warrant reversal.

Affirmed.


author: David Newbern, Justice. Robert H. Dudley, Justice, Tom Glaze, Justice,

text:
    Bob DRIGGERS v. Ken LOCKE
    95-598
    913 S.W.2d 269
    Supreme Court of Arkansas
    Opinion delivered January 16, 1996

      Gary Eubanks & Associates, by: James Gerard Schulze and T. Michael Lee, for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Beverly A. Rowlett, for appellee.
   David Newbern, Justice.

Bob Driggers, the appellant, sued Buddy Neal and Ken and Louann Locke for damages resulting from an automobile accident which occurred at an intersection in Arkadelphia. The record reveals that Mr. Driggers was unable to serve Buddy Neal, the driver of the other vehicle. The allegation against the Lockes was that holly bushes growing on their property at the intersection so impaired motorists’ ability to see oncoming vehicles as to be a cause of the accident. The Lockes denied liability and moved for summary judgment which was entered in their favor. Mr. Driggers took a voluntary nonsuit of his claim against Buddy Neal and appealed the summary judgment which we affirm.

1. Finality of the order

Although no issue as to the finality of the order has been raised by the parties, our recent decision in Haile v. Arkansas Power & Light Co., 322 Ark. 29, 907 S.W.2d 122 (1995), raises a question whether the summary judgment is a final, appealable order. In the Haile case, as we had done in Ratzlaff v. Franz Foods of Ark., 255 Ark. 373, 500 S.W.2d 379 (1973), we held that a party who has several claims against another may not take a voluntary nonsuit of one claim and appeal an adverse judgment as to the other claims when it is clear that the intent is to refile the nonsuited claim and thus give rise to the possibility of piecemeal appeals.

This case is different in that the nonsuit is not with respect to one of several claims against a party; it is a nonsuit with respect to one of several parties. Arkansas R. Civ. P. 54(b) makes it clear that when there are multiple parties the disposition of the case as to fewer than all does not amount to a final, appealable order absent a certification of the Trial Court that there is no need to delay the entry of a final judgment. Of course, as a technical or formal proposition, Mr. Driggers has no remaining claim before the Trial Court in view of the nonsuit and the summary judgment, so Rule 54(b) is not applicable. That does not, however, answer the question whether the rationale of the Haile and Ratzlaff cases should apply.

We have found very little authority on the matter of the finality of a judgment when there has been a nonsuit without prejudice against one of multiple parties to litigation arising out of a single incident. We do know that we have not dismissed other appeals which have come to us in this posture. See, e.g., the recent case of Bryant v. Putnam, 322 Ark. 284, 908 S.W.2d 338 (1995).

Focusing on the issue more intensely than we did in the Bryant case, we see at least one distinct flaw in the proposition that the rationale causing dismissal in cases of voluntary nonsuit of one of multiple claims against a single party should apply when the nonsuit is with respect to one of multiple parties. Nothing requires a plaintiff to sue the prospective defendants simultaneously. If, however, a plaintiff has a number of claims against a single party, the doctrine of res judicata will bar issues which could have been litigated between them but were not. In Matter of Estate of Goston v. Ford Motor Co., 320 Ark. 699, 898 S.W.2d 471 (1995); Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991). If Mr. Driggers had sued the Lockes and not joined Buddy Neal, the summary judgment in favor of the Lockes would have unquestionably been a final, appealable order, and he could have sued Buddy Neal later. The fact that he began an action against Buddy Neal and then took a nonsuit leaves the parties in the same positions as they would have occupied had the claim against Buddy Neal merely been delayed rather than nonsuited.

The one case we have found which airs a similar issue based on similar facts is Fassett v. Delta Kappa Epsilon (New York), 807 F.2d 1150 (3d Cir. 1986). The opinion suggests the appeal would not have been considered final but for the fact that the statute of limitations had run on the claim against the party nonsuited, thus the litigation was effectively over. This litigation may also be over with respect to the claim against Buddy Neal in view of the apparent inability of Mr. Driggers to serve Mr. Neal and in view of the Lockes’ answer stating, “upon information and knowledge that Buddy Neal is deceased and therefore is no longer a resident of Clark County, Arkansas.” Regardless of this additional practical possibility, we hold the rationale of the Haile case does not apply when the nonsuit is as to a party and not an issue in the case. We thus proceed to the merits of the summary judgment in favor of the Lockes.

2. Duty

The Lockes’ motion for summary judgment stated, “Owners and occupiers have no common law duty to maintain their property so as to ensure that travelers of an abutting highway have an unobstructed view of intersections,” and that the drivers’ conduct constituted “intervening causes” of the accident. Mr. Driggers’ response was a simple denial of both allegations. The order granting summary judgment did not specify the basis, but we must conclude the Trial Court agreed there was no duty on the part of the landowners. Otherwise, there would have obviously been questions of fact to be decided with respect to causation, and summary judgment would have been inappropriate. Ark. R. Civ. P. 56(c).

The question of whether a duty is owed is always a question of law. First Commercial Trust Co. v. Lorcin Eng’g, 321 Ark. 210, 900 S.W.2d 202 (1995). If the Lockes had a duty to maintain the bushes on their land in such a way as not to obscure the vision of motorists approaching the intersection, then questions of negligence involving issues of fact were presented to the Trial Court. If there was no such duty, summary judgment was appropriate.

In Ben M. Hogan & Co. v. Krug, 234 Ark. 280, 351 S.W.2d 451 (1961), the plaintiffs were the driver and occupants of a car which struck a gravel truck when the truck exited property leased by Ben M. Hogan & Co. (Hogan) after obtaining a load of gravel from Hogan. The plaintiffs sued the owner and driver of the truck as well as Hogan. The complaint against Hogan alleged numerous acts of negligence including an allegation that Hogan was negligent in:

The assembling and maintaining of a stockpile of gravel 25 feet high and 35 feet wide . . . which completely obstructed and cut off the view of the appellee and prevented her from seeing the . . . truck; that Hogan had failed to cut. and remove trees, bushes and vines which had grown on the leased property of the appellant [Hogan] in such a manner that it had obstructed the appellee’s view . . . and prevented her from seeing the . . . truck ....

The bulk of our opinion dealt with an explanation that the piling of the gravel was not a negligent act and that the actions of the drivers of the vehicles involved in the collision amounted to intervening causes of the injuries. In conclusion, however, we said:

The gravel pile was merely one of the conditions or surrounding circumstances that were present at the time of the accident. It was one of the “circumstances” to be considered in applying the rule of reasonable care “under the circumstances” in determining the fault or lack of it on the part of the drivers of the vehicles involved. It was no more a “cause” of the accident than was any of the other conditions present, such as: the underbrush and trees which obscured the view — the dirt and gravel road with less traction for stopping than one of a different material — the hill which did not allow an adequate view down the road — the great distance from the bumper to the windshield of the truck which prevented the driver from seeing down the road without pulling out on it. Certainly we are not going to hold liable every property owner who has a tree alongside the road — the city, county, or state for not providing the most efficient road surfacing material — the city, county, or state for failing to level all hills or straighten out all curves — and manufacturers of vehicles for not shortening truck noses.
The location of the gravel pile and all of these things to which we make reference here are circumstances that should have been considered by [the owner and driver of the truck] ... in applying the rule of reasonable care.

We held a verdict should have been directed in favor of Hogan.

The parties now before us offer, quite understandably, differing interpretations of the Ben M. Hogan & Co. opinion. Mr. Driggers sees it as one which “turned entirely on the law of proximate cause as it existed in 1961” and argues the law has changed to permit his claim. The Lockes contend the holding' was that Hogan could not have been negligent because it owed no duty to passing motorists not to erect or maintain on its property items which would obstruct their view. There would have been no need for the discussion of intervening causation if we had concluded Hogan had no duty to the drivers. On the other hand, our language referring to Hogan’s gravel pile, vines, brush, etc., as “circumstances” which had to be taken into consideration by the drivers supports the conclusion that Hogan owed no duty to them.

In his brief, Mr. Driggers acknowledges that “there is no common law duty imposed upon a landowner to control the vegetation on his property for the benefit of users of a public highway,” quoting Krotz v. CSX Corp., 115 A.D.2d 310, 496 N.Y.S.2d 190 (A.D.4 Dept. 1985). See William J. Appel, Annotation, Liability of Private Landowner for Vegetation Obscuring View at Highway or Street Intersection, 69 A.L.R.4th 1092 (1989). But he cites other cases from other jurisdictions which he purports to have rejected the common law rule, and contends the number of states which follow it is “shrinking.”

Mr. Driggers’ primary citation in support of the trend he sees away from the common law rule is Sprecher v. Adamson, 30 Cal.3d 358, 178 Cal. Rptr. 783, 636 P.2d 1121 (1981). There the California Supreme Court does, as Mr. Driggers says, point out that some 13 jurisdictions have held a landowner liable for a natural, as opposed to artificial, condition resulting in injury to a person or property off the landowner’s premises. The cases are not helpful here, however. The Sprecher case involved a natural landslide which physically injured a neighbor’s property. It was held that the owner of the land had a duty to take reasonable actions to check the landslide. The California Court noted that all the cases from the other 13 jurisdictions had to do with trees falling off the landowners’ premises. Those cases are nothing new, and they comport with the view expressed in the Restatement (Second), Torts, § 363(2), which states, “A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.” Comment e. to that section makes it clear that the danger contemplated is that resulting not from the presence of the trees but from their condition, i.e., the probability that they may break and fall on the highway. See also Prosser and Keeton on Torts, § 57 (5th ed. 1984).

There are cases which have held a landowner liable for obstructing the view of motorists. Mr. Driggers cites a reported decision of a Delaware trial court denying summary judgment on the ground that there is such a duty. A defendant in possession of the land had planted corn up to the shoulder of a rural road at an intersection. As one basis of possible liability, the Court held in favor of the plaintiff with respect to the claim that a covenant specifically restricting those in possession of the land from obstructing the view of the roadway was binding. With respect to the duty, generally, the Court denied the summary judgment motion of the possessor of the land on which the corn grew, citing Restatement (Second) of Torts, § 371. Restatement § 371 provides that:

A possessor of land is subject to liability for physical harm to others outside of the land caused by an activity carried on by him thereon which he realizes or should realize will involve an unreasonable risk of physical harm to them under the same conditions as though the activity were carried on at a neutral place.

We have some doubts about the propriety of citing that section in support of a duty not to obscure view because the illustrative examples provided in the accompanying comment b. all have to do with the activity of burning something on the land and causing smoke to invade the highway. Another reservation we would have about relying on this case in support of departing from the common law rule is that the Court’s opinion does not mention the rule. We have no way of knowing if it was even argued in the case.

Mr. Driggers also cites decisions from courts of appeals in which the duty in question was found to exist, but in none of them was there a discussion or specific rejection of the acknowledged common law rule to the contrary. See Wright v. Travelers Ins. Co., 288 So.2d 374 (La. App. 1974); Hamric v. Kansas City So. Ry. Co., 718 S.W.2d 916 (Tex. App. 1986); Harvey v. Hansen, 445 A.2d 1228 (Pa. Sup. 1982). Perhaps the most persuasive of these cases is Langen v. Rushton, 360 N.W.2d 270 (Mich. App. 1985), in which the Court said, “We cannot subscribe to a rule of law which would relieve the modern urban landowner from responsibility for foreseeable consequences caused by activity which poses an unreasonable risk of harm.” The case involved alleged liability of the owner of a shopping center for maintaining a tree obscuring the view of drivers exiting the parking lot. There again, however, the authority cited was Restatement § 363, which we do not, as mentioned above, consider to be applicable.

The policy reasons in favor of the common law rule have been stated in terms of the unreasonableness of the burden placed on landowners to know when vegetation may be such as to cause a hazard to motorists and to trim or remove the vegetation in a manner so as to remove the hazard. In Pyne v. Witmer, 512 N.E.2d 993 (Ill. App. 2 Dist. 1987), the Illinois Appellate Court held that Illinois statutes dealing with nuisances created by landowners imposed no duty to control foliage in such a manner as to not impede the view of motorists at intersections. The Court concluded, in response to the allegation of a common law duty, as follows:

. . .we conclude, in the absence of a statutory directive to the contrary, that there is no duty in Illinois on a landowner to remove foliage on his property so that motorists approaching an intersection can see other intersecting motorists. Considering the burden such a duty would impose on private property owners, we leave the imposition of such a duty to the legislature.

This same sort of policy balancing occurred in Fritz v. Parkison, 397 N.W.2d 714 (Iowa 1986), in which the Iowa Supreme Court considered whether a landowner had a duty to remove trees which obscured the view of motorists rounding a curve in the highway. Here are some of the Court’s remarks:

While Norton’s trees may have required drivers to proceed with some additional degree of caution, the trees could not reasonably have been expected to pose any significant threat to motorists operating their vehicles in a reasonably prudent manner, and clearly could not be characterized as an unexpected occurrence like a falling limb or a gaggle of geese.
Ordinarily a landowner in Norton’s position would have no expertise in determining what does or does not constitute sufficient visibility or in concluding what steps would be required to select offending trees.

The Court, after mentioning a public policy favoring the planting of trees and considering the costs to landowners of attempts to assure appropriate visibility for motorists and the uncertainty they would have to endure, concluded that “the county and the motorists are in a much better position to take precautions sufficient to minimize any danger.”

No doubt cities, counties, and states can purchase rights of way sufficient to allow for foliage removal in connection with the maintenance of safe curves, intersections, and road shoulders, applying the expertise necessary to see to their safety. Like the Iowa Court, we decline to reject the common law rule or, absent legislation to the contrary, place the burden of public safety on those whose properties abut public streets and highways.

Affirmed.

Dudley and Glaze, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. Plaintiff Bob Driggers filed this tort suit against codefendants Buddy Neal and Ken and Louann Locke. In his complaint, plaintiff alleged that he was driving his vehicle north on Tenth Street in Arkadelphia and, while crossing the intersection of Tenth and Main, defendant Buddy Neal negligently drove his vehicle into plaintiffs vehicle, and as a result, plaintiff suffered damages. In the same complaint, plaintiff alleged that defendants Ken and Louann Locke negligently allowed a “hedge row of holly bushes and other shrubs” to “extend out to such a distance that requires vehicles traveling north on Tenth Street to actually enter the intersection of Tenth and Main before traffic traveling east on Main Street can be seen” and that their negligence was a concurrent proximate cause of plaintiff’s damages.

Defendants Ken and Louann Locke moved for summary judgment on the ground that landowners have no duty to maintain their property so that motorists have an unobstructed view of intersections. The trial court granted summary judgment. The majority opinion holds that a possessor of land can, with impunity, allow holly bushes and other shrubs to grow to such height and size that they obstruct the view of motorists. I dissent.

The question of whether a duty is owed between parties is a matter of law. Van Houten v. Pritchard, 315 Ark. 688, 870 S.W.2d 377 (1994). In general, it is the duty of all persons to use ordinary care for their own safety and the safety of others, unless a statute or rule of law provides otherwise. See W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 53 (5th ed. 1984). The inquiry then becomes whether the law provides that a possessor of land is immune from liability for injuries caused by his or her lack of ordinary care in maintaining holly bushes and other shrubs.

A. Arkansas Case

The only Arkansas case that discusses even a part of the issue in this case is Ben M. Hogan Co. v. Krug, 234 Ark. 280, 351 S.W.2d 451 (1961). The majority opinion tacitly admits that case does not expressly exempt a possessor of land from the duty to exercise ordinary care in the maintenance of land. Thus, there is no law providing immunity for a possessor of land who allows ornamental shrubs to grow so that they block the vision of motorists. The holding of this court then should be that the possessor of land has a duty to exercise ordinary care of land so that ornamental shrubs do not obstruct the vision of motorists.

Further, the cited case actually supports this dissent. In that case we held that the circuit court erred in denying the defendant landowner’s motion for summary judgment because the defendant’s maintenance of a gravel pile was not negligent and was not the proximate cause of plaintiff’s injuries even though the pile obstructed the view of drivers at an intersection. Negligence and intervening cause were issues only because a duty was owed to motorists. In the case we wrote:

That brings us to a consideration as to whether or not the appellant was negligent in maintaining on its property a gravel pile which it is alleged obscured the vision of the appellee as she drove the car toward the intersection of the haul road and the County Line Road where the accident occurred. This lessening of her sight distance by the gravel pile and the presence of growth of various kinds is alleged by the appellees to have brought about the accident.
The piling of the gravel on his own property by Hogan was not of itself negligent and the only time that the gravel itself could have brought about an injury would have been if Hogan had negligently piled it on the County Road in such a way that a car might strike it or had it been stacked so close to the County Road that part of it had sloughed off and damaged vehicles or persons on the County Road. So far as the gravel piling is concerned, it could have remained in that spot at that height indefinitely without causing any damage. Therefore it cannot in any way be said that the gravel pile was of itself the proximate cause of the injuries of which the appellees complain.

Id. at 284, 351 S.W.2d at 453.

We then discussed proximate cause and articulated the applicable rule as follows:

[T]he rule is that the injury must be the natural and probable consequence of the act — such a consequence, under the surrounding circumstances of the case, as might and ought to have been foreseen by the defendant as likely to flow from his act; the act must, in a natural and continuous sequence, unbroken by any new cause, operate as an efficient cause of the injury.

Id. at 285, 351 S.W.2d at 453-54 (quoting Comment, Torts Proximate Cause Intervening Force, 1 Ark. L. Rev. 148, 152 (1947) (emphasis supplied by the court)). We concluded the opinion by holding that the hauling of gravel by a third person and the operation of the truck and trailer by that third party intervened and were sufficient to stand as the cause of the injury. Again, we would not have discussed negligence and proximate cause if there were no duty.

In summary, the general rule is that one has a duty to use ordinary care for his or her own safety and for the safety of others, unless a statute or rule of law provides otherwise. Neither of the parties nor the majority opinion cites a statute or rule of law of this State providing immunity to the landowner. The general rule should apply, and the possessors of the land should be held to have owed a duty to maintain the ornamental shrubs so that they did not obstruct the vision of motorists.

B. Law of Other Jurisdictions

The traditional common-law rule is that the possessor of land is under no affirmative duty to remedy conditions of purely natural origin upon his land. Nichols v. Sitko, 510 N.E.2d 971 (Ill. App. 1987); Evans v. Southern Holding Corp., 391 So. 2d 231, rev. denied, 399 So. 2d 1142 (Fla. Dist. Ct. App. 1981); W. Page Keeton et al., Prosser & Keeton on the Law of Torts, § 57 (5th ed. 1984); William J. Appel, Annotation, Liability of Private Landowner for Vegetation Obscuring View at Highway or Street Intersection, 69 A.L.R.4th 1092 (1989). The term “natural condition” of land means a condition that is not in any way the result of human activity. See Restatement (Second) of Torts § 840(1) cmt. a (1979); see generally Prosser, supra; Restatement (Second) of Torts § 363 (1965). Ornamental shrubs are the result of human activity.

The nonliability for failure to remedy natural conditions “originated in times when much land remained uncleared and any duty placed upon a landowner to cut or remove vegetation on his property would have been an onerous one.” William J. Appel, Annotation, Liability of Private Landowner For Vegetation Obscuring View at Highway or Street Intersection, 69 A.L.R.4th at 1098. Historically, the consideration most frequently invoked to support the rule of nonliability for natural conditions was that it was merely an embodiment of the principle that one should not be obligated to undertake affirmative conduct to aid or protect others. Sprecher v. Adamson Cos., 636 P.2d 1121 (Cal. 1981); Restatement (Second) of Torts, § 314 (1965); see generally, James, Scope of Duty in Negligence Cases 47 Nw. U. L. Rev. 778, 800-09 (1953); Dix W. Noel, Nuisances from Land in Its Natural Condition, 56 Harv. L. Rev. 772, 796-97, and n.102 (1943). This rule rested on the common law distinction between the infliction of harm and the failure to prevent it, or misfeasance and nonfeasance. Misfeasance was determined to exist when a defendant played some part in the creation of a risk. Nonfeasance occurred when a defendant failed to intervene on a plaintiffs behalf. Sprecher v. Adamson Cos., 636 P.2d 1121 (Cal. 1981).

Proponents of the rule of nonliability for natural conditions argued that a defendant’s failure to prevent a natural condition from causing harm was mere nonfeasance. A natural condition of the land was by definition, they argued, one which no human being had played a part in creating. Sprecher v. Adamson Cos., 636 P.2d at 1122; see Dix W. Noel, Nuisances from Land in Its Natural Condition, 56 Harv. L. Rev. at 773. Therefore, no basis for liability existed because a duty to exercise reasonable care could not arise out of possession alone. Since there was no special relationship between the possessor of land and persons outside the premises, there could be no liability. See Restatement (Second) of Torts, § 314, cmt. f (1965).

Conversely, a defendant’s failure to prevent an artificial condition from causing harm constituted actionable misfeasance. Sprecher v. Adamson Cos., 636 P.2d at 1126. Thus, the general rule has always been that a defendant has a duty to prevent an artificial condition from causing harm. The Restatement of Torts, in the material section, states this general rule as follows:

§ 364. Creation or Maintenance of Dangerous Artificial Conditions.
A possessor of land is subject to liability to others outside of the land for physical harm caused by a structure or other artificial condition on the land, which the possessor realizes or should realize will involve an unreasonable risk of such harm, if
(a) the possessor has created the condition, or
(b) the condition is created by a third person with the possessor’s consent or acquiescence while the land is in his possession, or
(c) the condition is created by a third person without the possessor’s consent or acquiescence, but reasonable care is not taken to make the condition safe after the possessor knows or should know of it.

Restatement (Second) of Torts § 364 (1965).

The general rule is that one owes a duty of ordinary care for the safety of others, unless a statute or rule of law provides otherwise. No statute or rule of law provides immunity for a possessor of land who maintains an artificial condition on his or her land. The holding in this case should be that the defendant possessors of land are not immune.

The majority opinion circumvents the issue in part because it discusses at length cases that involve purely natural conditions. That is not the condition that is before us. It simply is not necessary for us to decide whether to follow those states and the District of Columbia that apply ordinary negligence principles in determining a possessor’s liability for harm caused by a natural condition. See Sprecher v. Adamson Cos., 636 P.2d 1121 (Cal. 1981), listing thirteen jurisdictions following that rule. Similarly, it is not necessary for us to decide whether to follow other jurisdictions that have begun applying ordinary negligence principles only in urban locations. See Restatement (Second) of Torts, § 363(2) and cmt. a (1965). We need only decide the case before us, and it involves maintenance of ornamental shrubs in an urban location.

C. Public Policy

In determining whether a duty exists, a court should consider the forseeability of harm, the degree of certainty of damages, the closeness of connection between defendant’s conduct and the damage, the moral blame for the conduct, who could have best prevented the damage, the policy of preventing future damage, and the overall consequences to the state for imposing a duty. The motor vehicle is deeply involved in today’s society, transportation, and economy. Automobile accidents result in a tremendous amount of pain and suffering and enormous expenses for medical care and property losses. It is manifest that sound public policy is to prevent the causes of automobile accidents whenever reasonable and practical. This policy dictates that roadways should be free from artificial hazards and that a possessor of land should be liable to motorists when he or she fails to exercise ordinary care in maintaining artificial conditions. The possessor of land can easily foresee that if he or she allows ornamental shrubs to obstruct the vision of motorists, the result can be car wrecks and the resulting injuries and damages. The connection is close, and the possessor of the land is the only one who can prevent the injury and damages. The correct public policy is obvious.

The public policy solution proposed in the majority opinion requiring cities, counties, and states to purchase rights of way sufficient to allow for removal of shrubbery foliage simply misses the mark. The reasonable, sensible, fair and just solution is to place the duty on the party who can prevent the accident.

The majority opinion refuses to place the duty where it belongs. Perhaps the members of the General Assembly and the members of the city councils will recognize where the duty should be, and perhaps they will pass laws that prevent a possessor of land from maintaining holly bushes and other ornamental shrubs that obstruct the view of motorists.

I dissent.

Tom Glaze, Justice,

dissenting. I respectfully dissent. I strongly disagree with this court’s attempt to distinguish the recent case of Haile v. Arkansas Power & Light Co., 322 Ark. 29, 907 S.W.2d 122 (1995). As I understand the majority opinion, it states the Haile case involved a nonsuit of one of several claims against a party and the party nonsuiting intended later to refile the nonsuited claim, giving rise to possible piecemeal appeals. The majority opinion then relates that the rationale causing dismissal in cases of nonsuiting one of multiple claims against a single party (like in Haile) differs from the case (like the present one) dismissing one of multiple parties. This suggested difference is based on the fact that, where a plaintiff has a number of claims against a single party, the doctrine of res judicata will bar issues which could have been litigated between them but were not. On the other hand, where the dismissal of one of multiple parties occurs, the majority suggests the dismissal leaves all parties in the same positions, since nothing requires a plaintiff to sue the prospective defendants simultaneously.

My reluctance to join the majority court’s rationale and distinction between nonsuiting one claim of multiple claims from one party of multiple parties in the context of Rule 54(b) is the court’s failure to recognize that plaintiffs must often sue and join all party defendants in one lawsuit. See Ark. Civ. P. Rule 19(a) and Yamauchi v. Bank/Central South, 309 Ark. 532, 832 S.W.2d 241 (1992). In addition and most important, I point out that this court has held that the fundamental policy of Rule 54(b) is to avoid piecemeal appeals and that an order of dismissal of one party or one claim from a multi-party, multi-claim lawsuit may be granted when the trial court directs the entry of a final judgment as to one or more of the claims or parties and makes express findings that there is no just reason to delay the appeal. General Motors Acceptance Corp. v. Eubanks, 318 Ark. 640, 887 S.W.2d 292 (1994). Here, the appellant failed to produce a record on appeal showing the jurisdictional requirements of Rule 54(b). In sum, today’s majority decision simply ignores the simple language of Rule 54(b).

All things considered, I believe the distinction that the majority court attempts to draw between dismissing claims and parties in the Rule 54(b) context will be confusing and difficult to apply in future cases. Accordingly, I believe this case is controlled by Rule 54(b) and should be dismissed, as was done in Haile. A litigant’s attempt to nonsuit parties and claims to obtain a final order circumvents the intent and dictates of Rule 54(b) and should not be condoned. I would add that, while this Rule 54(b) and jurisdiction issue was not joined in the Bryant case, I think we erred there in accepting jurisdiction and proceeding to rule on the merits of the case.


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

text:
    STATE of Arkansas v. Aaron R. WEBB, et al.
    CR 95-308
    913 S.W.2d 259
    Supreme Court of Arkansas
    Opinion delivered January 16, 1996
    [Supplemental Opinion on Denial of Rehearing delivered February 26, 1996.]

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate for appellant.

      George, Morris, Spivey & Capehart, by: Tom C. Morris III and Brent Capehart and Godo, Dossey & Reeves, by: Samuel M. Reeves, for appellees.

      Glaze, J., concurs.

   David Newbern, Justice.

The Benton County Circuit Court issued a writ of prohibition to the Rogers and Bentonville Municipal Courts. The writ prohibits those courts from trying various charges of statutory misdemeanors levied by citations issued by police officers to Shadrick W. Clardy, Edward Kaczorowski, Jane Schmeichel, Aaron R. Webb, Nathan Painter, and Billie W. Keene. The State appeals the order issuing the writ. We reverse the order and dismiss the case.

Each of the appellees was arrested for a statutory misdemeanor alleged to have been committed in Benton County but not within either the municipality of Bentonville or the municipality of Rogers, each of which is located in Benton County. Each of the appellees was ordered by citation to appear in either the Rogers or Bentonville Municipal Court. Upon consideration of each of the reasons given by the Trial Court and argued on appeal in favor of the writ, we conclude its issuance was unwarranted.

1. Venue

A writ of prohibition may issue if venue is improperly laid. See Prairie Implement Co., Inc. v. Circuit Court of Prairie County, 311 Ark. 200, 844 S.W.2d 299 (1992); Griffin v. State, 297 Ark. 208, 760 S.W.2d 852 (1988). In the case now before us the Trial Court held, in effect, that venue would be improperly laid in any municipal court with respect to any offense alleged to have occurred outside the municipality served by the court. Proper venue is an issue not often litigated in criminal cases, except when a change of venue is at issue. The issue involved here, although it might understandably be referred to as one of venue because it deals with the place where a trial may be had, is more properly characterized as an issue of territorial jurisdiction.

If the allegation of a charging instrument were that an offense occurred outside the territorial jurisdiction of the court, then a judgment rendered by the court would be void. Waddle v. Sargent, 313 Ark. 539, 855 S.W.2d 919 (1993); Williams v. Reutzel, 60 Ark. 155, 29 S.W. 374 (1895); RESTATEMENT (SECOND) OF JUDGMENTS § 4 (1982).

The law in this State is that a criminal trial must be held in the county in which the crime was committed, provided that venue may be changed, at the request of the accused, to another county in the judicial district in which the “indictment is found.” Ark. Const. art. 2, § 10; Waddle v. Sargent, supra. These authorities limit a circuit court to trying a criminal case in the county in which the crime was committed unless the accused requests the trial be moved to another county which, in any case, must be a part of the judicial district served by the court.

While our circuit courts are thus limited to trying accusations of crimes which occurred in the counties, or judicial districts, in which they sit, our municipal courts are not limited, either by our Constitution or by statute, to trying crimes which occurred in the cities in which they sit. To the contrary, our Constitution and Code both authorize a municipal court to assert limited subject-matter jurisdiction throughout the county in which it sits. Arkansas Code Ann. § 16-17-704(a)(2) (Repl. 1994) provides: “The municipal court shall have original jurisdiction, coextensive with the county wherein the court is situated over the following matters: . . . over misdemeanors committed within the county . . . .”

Arkansas Const, art. 7, § 43, provides:

Corporation courts for towns and cities may be invested with jurisdiction concurrent with justices of the peace in civil and criminal matters, and the General Assembly may invest such of them as it may deem expedient with jurisdiction of any criminal offenses not punishable by death or imprisonment in the penitentiary, with or without indictment, as may be provided by law, and, until the General Assembly shall otherwise provide, they shall have the jurisdiction now provided by law.

The General Assembly first conferred county-wide jurisdiction on municipal courts in Act 87 of 1915, § 10, which was promptly challenged in State v. Woodruff, 120 Ark. 406, 179 S.W. 813 (1915), as being in violation of the Arkansas Constitution. We held as follows:

No limitation is found in the Constitution upon the power of the Legislature to vest jurisdiction in municipal courts, when established, beyond the geographical limits of the municipalities. Nor can it be said that there exists any policy or sound reason for restricting the jurisdiction to such geographical limits. The authorities cited on the briefs of counsel do not sustain the contention that there is such an inherent limitation upon the power of municipal courts. Unless the organic law forbids, the Legislature may extend the jurisdiction beyond the territorial limits of the municipalities. The authority found in the Constitution is to vest jurisdiction in municipal courts “concurrent with the jurisdiction of justices of the peace in criminal and civil matters,” that is to say, concurrent with the jurisdiction which it is within the power of the Legislature to confer upon justices of the peace. The Constitution does not by its express terms restrict the jurisdiction of justices of the peace to the territorial limits of the township in which they are elected to serve, therefore the jurisdiction of municipal courts finds no such restriction in the Constitution. At the time of the adoption of the Constitution of 1874, corporation courts in cities of the first class exercised the same jurisdiction under statutes then in force as did justices of the peace . . . which thus extended the criminal jurisdiction to the territorial limits of the county, the same as that exercised by justices of the peace.

In Sexson v. Municipal Court of Springdale, 312 Ark. 261, 849 S.W.2d 468 (1993), a writ of prohibition was issued to prevent trial by the Springdale Municipal Court, which is situated in Washington County, of an offense alleged to have occurred in that part of Springdale which lies in Benton County.

Whether the issue be referred to as one of venue or territorial jurisdiction, nothing in our Constitution or Code dealing directly with the place in which misdemeanor charges must be tried limits it to the city in which the court sits. The territorial jurisdiction of municipal courts extends throughout the counties in which they sit.

2. Equal protection

A reason given for upholding the writ of prohibition is that to allow a municipal court to hear the case of an offense which occurred outside the limits of the city in which it is situated creates two classes of persons, one of which is denied its right to equal protection of the laws.

The State contends a general constitutional issue such as whether the prescription of jurisdiction for municipal courts violates the right to equal protection of the laws is not a proper subject for prohibition because the issue could be raised on appeal after objecting and moving to dismiss on that basis in a trial de novo in circuit court. With the possible exception of the venue issue, writs of prohibition are limited to cases in which a trial court purports to act without jurisdiction or in excess of its jurisdiction. Taylor v. Rogers, 298 Ark. 53, 764 S.W.2d 619 (1989); Municipal Court of Huntsville v. Casoli, 294 Ark. 37, 740 S.W.2d 614 (1987).

Given our decision in the Griffin case, we are not so certain that one who is convicted in a municipal court can get the issue of equal protection to us on appeal after the mandatory appeal to a circuit court where the issue may “disappear.” We are sufficiently uncertain about it that we would be willing to consider the question now despite the fact that it might be possible to bring it before us on appeal of a de novo circuit court judgment resulting from a municipal court appeal. We cannot give it full consideration, however, due to the posture of the parties in this case.

The argument of Mr. Webb and the other appellees is stated as follows in their brief:

In order to be considered a candidate for municipal judge, one must be “an elector of the judicial subdivision wherein the court sits.” Ark. Code Ann. § 16-17-209(a) (Repl. 1994). That is, one who is not a resident of Bentonville, for example, may not be a candidate in the election for judge of the Bentonville Municipal Court. Additionally, one who does not reside in Bentonville, for example, may not vote in the election of Bentonville’s municipal judge. The result of this system is that persons not residing in a city having a municipal court are effectively denied equal protection and due process of law under both the United States and Arkansas Constitutions.

The argument would seem to be that these appellees would somehow be prejudiced if they were to be tried in a court they could not help elect. That argument is answered easily by pointing out that the jurisdiction of the courts in criminal cases is based on the territory in which crimes are committed and not on the residence or voting privileges of the persons who commit the crimes.

There might be a legitimate equal protection argument to be raised, but it has not been made here. The argument might be that one class is composed of the residents of the city who are enfranchised to elect the municipal judge; the other is composed of the other residents of the county who are not so enfranchised. Misdemeanors committed in the part of a county lying outside any city may, in our system, be adjudicated by a court not elected by the residents of the place where the crime allegedly occurred. It might be argued that citizens have a right to elect the person who tries the cases which arise in the territory in which they reside. Such a class of persons is obviously not contemplated in this case and is not present. Two of the appellees are residents of Bentonville, and one is a resident of another state.

Such an argument, if made, would be faced with the hurdle of Holt Civil Club v. City of Tuscaloosa, 439 U.S. 60 (1978), in which the United States Supreme Court held that an Alabama law permitting cities to impose police regulations, including municipal court jurisdiction, three miles beyond city limits did not violate the right of equal protection of the laws accorded to the citizens residing in the three-mile area.

Lying beneath the challenge to county-wide jurisdiction of municipal courts, and mentioned in the appellees’ brief, is the specter of improper forum shopping and perhaps some corruption in the process of selecting the municipal court in which a misdemeanor alleged to have occurred outside city limits might be tried. That was the allegation in Griffin v. State, supra, and in Pschier v. State, 297 Ark. 206, 760 S.W.2d 858 (1988). In those cases it was alleged that the offenses were committed near one municipality but the defendants were inexplicably cited to appear in a municipal court serving a city some distance away from the place in the county where the offense was committed. We were unable to reach that issue because, by the time the cases reached us, they had been the subjects of de novo trials in a circuit court where the argument did not apply.

In the case now before us, none of the parties who sought the writ alleged that he or she was being hailed into a court which was not the nearest to the place where the offense occurred. The State, referring to the dissenting opinion of Justice Hickman in the Griffin case, concedes that there may be good reasons for objecting to a system which might permit improper forum shopping, but that none of them amounts to a constitutional basis for holding a municipal court lacks jurisdiction of misdemeanors committed in the county in which it sits but beyond the limits of the city in which it is situated.

3. Jury trial

One accused of a crime in this State has a right to a trial by jury, Ark. Const. art. 2, § 7; Ark Code Ann. 16-89-107(b)(1) (1987); Johnston v. City of Pine Bluff, 258 Ark. 346, 525 S.W.2d 76 (1975); however, “There shall be no jury trials in municipal court. In order that the right of trial by jury remains inviolate, all appeals from judgment in municipal court shall be de novo to zzzcircuit court.” Arkansas Code Ann. § 16-17-703 (Repl. 1994). There is thus a “two-tier” system for an accused misdemeanant who wishes a jury trial.

In his ruling from the bench, the Trial Court remarked about the problems of extra costs in a second trial, the extra effort to which a defendant has to expend to obtain a trial by jury in a circuit court after conviction in a municipal court, and the possible embarrassment to be suffered by one who pleads guilty in a municipal court just to expedite obtaining the right to a jury trial in a circuit court.

The two-tier system of providing a trial by jury for accused misdemeanants has withstood constitutional scrutiny in both the United States Supreme Court, Ludwig v. Massachusetts, 427 U.S. 618 (1976), and this Court. State v. Roberts, 321 Ark. 31, 900 S.W.2d 175 (1995). The arguments being made in this case have been considered previously, and in any event, they are of the sort which do not challenge the jurisdiction of the municipal courts and which could indeed be raised on appeal.

Reversed and dismissed.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING FEBRUARY 26, 1996

Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate for appellant.

Samuel M. Reeves and Tom C. Morris, III, for appellees.

David Newbern, Justice.

The appellees’ petition for rehearing asserts that the Court’s opinion in this case erred in its somewhat gratuitous explanation about how a proper equal protection argument might have been, but was not, presented. The error alleged is that we overlooked the fact that some of the appellees were residents of Benton County but not of the cities which proposed to prosecute them. That is not so.

The argument that the three appellees who were residents of Benton County but not of Bentonville or Rogers were denied equal protection of the laws was answered in the Court’s opinion by pointing out that the jurisdiction of a court with respect to a criminal offense has necessarily to do with the place in which the crime is alleged to have been committed rather than the residence of the defendant. It would be ludicrous to hold that a class of persons consisting of defendants not enfranchised to elect the judge was being denied equal protection of the laws. We pointed out that it was apparently not the intention of the appellees to assert they constituted such a class, as two of them were residents of Bentonville and one was from another state.

The point of the additional explanation, apparently missed by the appellees and certainly missed by the concurring opinion, is that a good equal protection question might have been raised by an “argument . . . that one class is composed of the residents of the city who are enfranchised to elect the municipal judge; the other . . . composed of the other residents of the county who are not so enfranchised. [Emphasis supplied.]” The question would be whether persons residing in the county, but not in a city served by a municipal court, would be entitled to have allegations of criminal conduct occurring in their locality adjudicated by a court elected by them as opposed to a court elected solely by residents of a city.

We did not misunderstand the argument presented by the appellees nor were any asserted facts overlooked in our deliberation and resolution of this case. The petition for rehearing is, therefore, denied.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. We erred in our opinion delivered on January 16, 1996, and while that error does not warrant granting a rehearing, it is significant enough that appellees are due an explanation. Because I believe the integrity of the court’s opinion comes into question without the court’s correction and clarification, I write to explain.

Here, appellees, seven municipal court defendants, had pending misdemeanor actions filed against them in either the Bentonville or Rogers municipal courts. They filed a petition for writs of prohibition in Benton County Circuit Court, alleging the two municipal courts lacked county-wide venue, and the circuit court issued the writs. The state appealed the lower court’s decision, and the defendants’ argued that the trial court was correct because to allow a municipal court to hear misdemeanor actions occurring outside the city limits violated their rights to equal protection of the law. Specifically, defendants argued that “one who does not reside in Bentonville may not vote in the election of Bentonville’s municipal court, and the result ... is the persons not residing in a city having a municipal court are effectively denied equal protection and due process of law. ...”

In attempting to answer the defendants’ contention, this court opined, “That argument is answered easily by pointing out that the jurisdiction of the courts in criminal cases is based on the territory in which crimes are committed and not the residence or voting privileges of the persons who commit the crimes.” However, our opinion continued with the following but mistaken analysis of the facts and law:

There might be a legitimate equal protection argument to be raised, but it has not been made here. The argument might be that one class is composed of the residents of the city who are enfranchised to elect the municipal judge; the other is composed of the other residents of the county who are not so enfranchised. Misdemeanors committed in the part of a county lying outside any city may, in our system, be adjudicated by a court not elected by the residents of the place where the crime allegedly occurred. It might be argued that citizens have a right to elect the person who tries the cases which arise in the territory in which they reside. Such a class of persons is obviously not contemplated in this case and is not present. Two of the appellees are residents of Bentonville, and one is a resident of another state. (Emphasis added.)

In their petition for rehearing, the defendants properly point out that we overlooked the fact that three of them were arrested in Bella Vista, were county residents in Bella Vista or Centerton, but charged in the Bentonville Municipal Court. Another defendant was arrested in the Gann Ridge Road county area, resided in Avoca, but was charged in the Rogers Municipal Court. Clearly these four defendants had standing and fall within the alleged violated class of persons who reside in Benton County, and are not enfranchised to elect the municipal judge before whom they are charged.

In its response to the defendants’ petition for rehearing, the state tactfully makes no mention of this court’s failure to recognize the above four defendants and their obvious standing to raise the equal protection argument based upon voting rights (or lack thereof). Instead, the state merely renews its argument in its original brief — defendants in criminal cases cannot raise constitutional issues by means of a writ of prohibition. The state’s argument was correct, Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992), and in retrospect, our court should have rejected the defendants’ equal protection argument for this reason without stating more.

In sum, our error in overlooking the resident evidence, concerning four of the defendants, caused us to give the wrong reason for refusing to reach their equal protection argument. We should be willing to correct that error, and state a correct reason for rejecting the defendants’ argument — a writ of prohibition does not lie to address constitutional errors.

I conclude by saying that the court now issues a supplemental opinion wherein it better frames the equal protection argument it had intended to state in the original opinion, namely, “The question of whether persons residing the the county, but not in a city served by a municipal court, would be entitled to have allegations of criminal conduct occurring in their locality adjudicated by a court elected by them as opposed to a court elected solely by residents of a city.” But if this is what we meant to say in our original opinion, the court fails to explain why it was necessary to mention the significance of pointing out that “two of the defendants are residents of Bentonville.” As noted above, the court’s original opinion clearly made no mention of the four defendants who are residents of the county.

At least with the clarifying supplemental opinion, defendants now know the so-called “legitimate” equal protection argument this court intended to pose in its opinion. If the defendants missed anything of importance in reading the court’s original opinion (as the majority suggests), it was due to our failure to make ourselves understood.