text:
    Leo DARROUGH v. STATE of Arkansas
    CR 95-590
    908 S.W.2d 325
    Supreme Court of Arkansas
    Opinion delivered October 30, 1995

      McArthur & Finkelstein, by: Hugh Finkelstein, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant Leo Darrough was convicted in a bench trial of two counts of possession of cocaine with intent to deliver, one count of simultaneous possession of drugs and firearms, one count of possession of marijuana, one count of possession of a firearm by a felon, and one count of maintaining drug premises. In addition, the trial court also revoked appellant’s probation from a prior conviction. We affirm the convictions and the revocation of probation.

I. Crimes Committed on August 17, 1993

At 11:50 p.m., on the night of August 17, 1993, Little Rock police officers executed a search warrant at 822 Rice Street. Upon entering the house, the officers found appellant Leo Darrough and Alice Plummer lying on a bed. In the same bedroom they saw a bag that contained a large, white, rock-like substance and several smaller pieces of the same substance; several pieces of white, rock-like substance in a small bottle; and several pieces of an off-white, rock-like substance sitting on the dresser. The bedroom was only about ten feet by twelve feet. The officers found a bottle containing pieces of a white substance in one of the bedroom closets. They observed a change purse containing three white, rock-like substances on the dining room floor. All of the white substances subsequently proved to be of a cocaine base. The police additionally found a plastic packet containing green vegetable matter on the floor of the bedroom and two small plastic packets of green vegetable matter on top of the entertainment center in the bedroom. These substances were later proved to be marijuana. Both closets in the bedroom had men’s clothing and shoes.

The police had used a confidential informant to purchase drugs with a marked twenty dollar bill at the residence earlier the same day. The person who sold the drugs to the confidential informant was a female. The police found $3,120.00 in cash sitting on a stereo speaker in the bedroom, and the marked money was included in that cash. The officers also found a loaded Winchester .20 gauge shotgun in the living room. Appellant, a felon, admitted that he owned the shotgun, but said he took it to the house to give to Ms. Plummer for her protection.

Appellant told one officer that the residence formerly belonged to his brother, Thomas Darrough, and that he acquired the house upon his brother’s death. He stated that a man had a key to the house and would leave cocaine there and come back later to pick it up. He stated that the cocaine and the large amount of cash found in the house belonged to this man. He thought the man gave money to children for selling drugs. Appellant stated that the man had been coming to his house for approximately six to eight months.

Appellant contends that the State failed to establish that he was in possession of the drugs and shotgun. We have said that in order to convict a defendant on possession of a controlled substance, the State need not prove that the accused had actual possession of the controlled substance. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Constructive possession, which is control or right to control the contraband, is sufficient. Id. at 50, 643 S.W.2d at 253. Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Id.

Where there is joint occupancy of the premises where contraband is found, some additional factor must be present linking the accused to the contraband. Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985). See Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978). In such cases, the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband and (2) that the accused knew the matter possessed was contraband.

Plotts v. State, 297 Ark. 66, 69, 759 S.W.2d 793, 794 (1988).

Here, there was substantial evidence that appellant lived in the house and that he and Alice Plummer were in the bedroom of the house at the time of the search. There was a considerable quantity of drugs and a large amount of cash in open view in the bedroom. The cash included a marked twenty dollar bill that had been used to buy drugs at the same address that same day. A loaded shotgun was nearby. We have no hesitancy in holding that these facts constitute substantial evidence that appellant knew of and had control of the contraband, possessed it with the intent to deliver, had simultaneous possession of cocaine and the firearm, and that he was a felon in possession of a firearm.

II. Crimes Committed on November 2, 1993

On November 2, 1993, Little Rock police officers executed another search warrant at the house at 822 Rice Street and at the adjacent salvage yard. The house was vacant, but the officers found white paper with cocaine residue on the kitchen counter, $309.00 on the bedroom dresser, a test tube with cocaine residue in the kitchen sink, and a razor blade with cocaine residue on the kitchen counter. Officers also found a Waterworks bill for Thomas Darrough.

Detective James King testified that he had seen appellant at the adjacent salvage yard “dozens and dozens of times.” Appellant and two other individuals were at the salvage yard when the police arrived. The police found three bottles that contained a residue of cocaine under the wheel well of a truck that was located east of the shop on the salvage yard. The area where the truck was located was not open to the public, but had a fence around it and had to be entered through a garage.

On the west side of a garage at the salvage yard, on the ground, and in plain view, the officers found a container that contained rocks of crack cocaine. This part of the salvage yard is surrounded by a fence and can be entered only through the garage. Outside the west side of the shop, tucked underneath various items, the police found three more bottles that contained a residue of cocaine. Car parts were strewn all about this area. Detective Dan Chandler testified that he had seen appellant at the salvage yard on numerous occasions and appellant was standing in the open portion of the garage, which was on the south side of the building at the east end, when the police arrived.

Appellant testified that he was at the salvage yard to move his car parts to another location. He testified that he had been evicted in March, and went to the salvage yard every day to move car parts. He testified that the two other individuals who were at the yard were hired that day to help him move the parts.

Appellant contends that the State failed to link him to the drugs found in the salvage yard. The question on review is whether there was substantial evidence to support the verdict. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). Substantial evidence is “evidence that is of sufficient certainty and precision to compel a conclusion one way or another, forcing or inducing the mind to pass beyond a suspicion or conjecture.” Cigainero v. State, 310 Ark. 504, 506, 838 S.W.2d 361, 362 (1992). In determining whether substantial evidence exists, we review the evidence in a light most favorable to the appellee. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990).

There was substantial evidence that appellant was at the salvage yard on a daily basis and was the operator of the yard. The parts in the yard belonged to him. Some of the containers with drugs were found in plain view, while others were hidden inside appellant’s property. Some of the contraband was found hidden in a truck that belonged to appellant. The immediate area was fenced and not readily accessible to others. The two other individuals who were there when the police arrived were only employed that day. The proof was sufficient to infer that the drugs were constructively possessed by appellant and not by the two individuals who were only at the salvage yard for the day. Thus, there was substantial evidence to sustain appellant’s convictions for maintaining drug premises and for possession of cocaine with intent to deliver.

III. Revocation of Probationary Sentence

On July 13, 1993, appellant pleaded guilty to charges of possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and maintaining a drug premises, and was sentenced to five years on probation. While on probation he committed the multiple crimes discussed in parts I and II of this opinion. Since we affirm the convictions for the multiple crimes that were committed while he was on probation, we necessarily hold that the trial court had sufficient evidence to revoke the probation of sentence. See Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988).

Affirmed.


source: Caselaw Access Project

author: Robert H. Dudley, Justice. Glaze, J.,

license: Public Domain

text:
    Orena DENT v. Lula WRIGHT and J.L. Wright, Jr.
    94-901
    909 S.W.2d 302
    Supreme Court of Arkansas
    Opinion delivered October 30, 1995

      Murray Grider, for appellant.

      Robert H. Crank, for appellees.
   Robert H. Dudley, Justice.

On May 6, 1993, plaintiff Orena Dent gave a joint and several general power of attorney to her sister, defendant Lula Wright, and her nephew, defendant J.L. Wright, Jr. Lula Wright is the mother of J.L. Wright, Jr. On the same day plaintiff opened a joint bank account in her and her sister’s names. There was no designation to the banking institution that the account was not to be the property of both joint tenants. See Ark. Code Ann. § 23-32-1005(1)(A) (Repl. 1994). Both plaintiff and defendant Lula Wright wrote checks on the account. Appellant wrote most of the checks, but there is no question that all of the checks written by defendant Lula Wright were for the benefit of plaintiff. On March 14, 1994, about ten months after plaintiff opened the joint bank account, plaintiff gave bills of sale to defendant J.L. Wright, Jr., for an automobile and for a mobile home. The bill of sale for the automobile reflected a consideration of one dollar, and the bill of sale for the mobile home reflected a consideration of one thousand dollars, but, in fact, no consideration was paid. On March 24, 1994, defendant Lula Wright withdrew all of the money from the joint banking account. Defendant Lula Wright does not contend that she is the owner of the money. Instead, she states that it is plaintiff’s money, but if the plaintiff’s name remained on the account, she would waste the money and become an indigent.

Later, plaintiff decided that she wanted back the car, the mobile home, and the money, and asked for their return. Both defendants refused. Plaintiff employed an attorney who made formal demand upon both defendants for the return of the property. Defendants declined. Plaintiff filed this one suit against the two separate defendants. The chancellor ruled in favor of each of the defendants, and plaintiff appeals. We affirm in part and reverse in part. For clarity, we discuss the suit against the separate defendants in the first two separate parts of this opinion, and discuss a subject-matter jurisdiction issue in the third part.

I.

On appeal, plaintiff contends that the chancellor erred in ruling that J.L. Wright did not exercise undue influence or commit fraud on the plaintiff to obtain the bills of sale to the automobile and mobile home. Defendant J.L. Wright, Jr,, testified that plaintiff told him she wanted to live in a nursing home and wished to give him her car and mobile home. He said he knew that she gave other relatives property amounting to about $60,000, and later became angry at those relatives and demanded back the property. In fact, she previously had given the same car and mobile home to another nephew and then sued the nephew for return of property. He testified that he told her the only way he would accept the car and mobile home was upon the advice of her attorney and through a valid legal transfer of the titles. He testified that he told her to follow the advice of her lawyer. He testified that he and Lula Wright subsequently took plaintiff to her attorney, J.F. Sloan, III, for advice.

Mr. Sloan, a respected attorney in the community, testified that he previously represented plaintiff; in fact, he had represented her in a suit against another nephew, William Sexton, to recover the same car and mobile home. He stated that plaintiff called his office for an appointment, and, at the appointed date, plaintiff, J.L. Wright, Jr., and Lula Wright came to his office. He said that he advised plaintiff against transferring the titles to defendant J.L. Wright, Jr., but she insisted on so doing. He testified that he did not witness any encouragement or inducement being made by either of the Wrights, and in fact their actions were “to the contrary” while plaintiff was “insistent.” He testified that plaintiff was “impatient” because he did not prepare the documents as quickly as she wanted.

Plaintiff did not testify to any undue influence or fraud. She testified that she did not recall conveying her car and mobile home to defendant J.L. Wright, Jr. However, she also testified that she remembered going to her attorney’s office and signing some papers, but did not remember what they were. She testified, “When my sugar gets high or low or whatever happens there is times that I don’t remember.”

A niece, Freda Butler, testified that plaintiff gave her $17,500.00 on July 19, 1991, or almost three years before she conveyed the car and mobile home to defendant. She testified that plaintiff gave William Sexton, another nephew, money, the same car, and the same mobile home, but then became “disturbed” about those gifts. She further testified that plaintiff gave Sexton and a stepdaughter equal amounts of money at the same time she gave her the $17,500.00. She stated she observed that plaintiff was confused at times, but not when she gave her money.

Chancery decisions are reviewed de novo on appeal, but the appellate court will not reverse the findings of the chancellor unless they are clearly erroneous. RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). A finding is clearly erroneous “when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. at 553, 713 S.W.2d at 464.

It was tacitly admitted that defendant J.L. Wright, Jr., was in a fiduciary relationship with appellant at the time he obtained the titles because it was admitted that he held a power of attorney from plaintiff. A person who holds power of attorney is an agent, and it has long been recognized that a fiduciary relationship exists between principal and agent in respect to matters within the scope of the agency. Yahraus v. Continental Oil Co., 218 Ark. 872, 239 S.W.2d 594 (1951). Transactions between persons connected by fiduciary relations will be closely scrutinized when the relation implies that one person has controlling influence over the other. Hawkins v. Randolph, 149 Ark. 124 (1921). However, even in fiduciary relationships this court has refused to find undue influence in the transfer of property when there has been no showing that the donees said or did anything to put the donor in a position of fear or that they committed fraud on her or overreached her in any way. Howard v. Glaze, 292 Ark. 28, 727 S.W.2d 843 (1987). This is true even when there is evidence to raise suspicion about impure motives. Id. at 31, 727 S.W.2d at 846.

It has been noted that there are not a lot of Arkansas cases on the subject of undue influence or duress. See Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993). However, it is generally recognized that in order to invalidate a contract, undue influence must operate to deprive a party of his or her free will. 17A Am. Jur. 2d Contracts § 237 at 240 (1991). When unfair advantage in a transaction is rendered probable because of superior knowledge of the matter derived from a fiduciary relationship; from overmastering influence on the one side; or from weakness, dependence, or trust justifiably reposed on the other side, it is incumbent on the stronger party to show that no deception was practiced. Id..; see also Restatement (Second) of Contracts § 177 (1979).

Here, there was no proof that defendant J.L. Wright, Jr., took unfair advantage of plaintiff because of the fiduciary relationship, that he took advantage of her because of trust, or that he deceived plaintiff in any manner. There was substantial evidence that the conveyances were entirely of plaintiff’s volition, and there was substantial proof that J.L. Wright, Jr., did not practice any deception. Thus, we affirm the chancellor’s ruling on this issue. Because we affirm the ruling of the chancellor we need not address the propriety of plaintiff’s asking punitive damages in chancery court.

II.

Plaintiff next contends that the trial court erred in refusing to rule that Lula Wright wrongfully converted the money in the joint bank account. The tort of conversion is committed when a party wrongfully commits a distinct act of dominion over the property of another which is inconsistent with the owner’s rights. Reed v. Hamilton, 315 Ark. 56, 864 S.W.2d 845 (1993). The bank account that was closed was a joint tenancy with right of survivorship. Ark. Code Ann. § 23-32-1005. Under the foregoing statute, defendant Lula Wright was an “owner” with “rights.” The right to withdraw funds is one of the rights enjoyed by a joint tenant of a bank account. Nall v. Duff, 305 Ark. 5, 805 S.W.2d 63 (1991). The signature card for the joint bank account provided, by marking, that the account was “Joint — With Survivorship (and not as tenants in common).” Defendant Lula Wright’s act of withdrawing the funds from the joint account was consistent with her rights as a cotenant of the account.

However, a joint tenant may not, by withdrawing funds in a joint tenancy, acquire ownership to the exclusion of the other joint tenant. In Hogan v. Hogan, 313 Ark. 374, 855 S.W.2d 905 (1993), we held that even though a joint tenant may withdraw the entire fund, one who does withdraw funds in excess of his moiety is liable to the joint tenant for the excess so withdrawn. Id. at 380, 855 S.W.2d at 909. In that case, two joint tenants cashed a certificate of deposit that had been purchased by their father, the third joint tenant, from funds belonging entirely to him. Id. at 375, 855 S.W.2d at 906. The trial court refused to give relief to the father, and granted summary judgment on the premise that the above statute provides that any joint tenant can redeem a certificate of deposit and whoever redeems it is entitled to the entire amount. Id. at 376, 855 S.W.2d at 906. In reversing, we held that the statutory provision means that the funds may be paid without liability to the financial institution to any one of the joint tenants, but that does not determine ownership to the exclusion of other joint tenants. Id. at 378, 855 S.W.2d at 909. We remanded and directed the chancellor to conduct a hearing on the merits of the matter between the joint tenants, “including a determination as to the imposition of a constructive trust and to apportion the proceeds in accordance with intentions of the parties.” Id. at 381, 855 S.W.2d at 909. We noted that Ark. Code Ann. § 18-60-101 (1987) recognizes the common rights of co-tenants by providing for an accounting when any joint tenant takes benefits greater than his interest. Id. § 18-60-101(a). In addition, we cited with approval Savage v. McCain, 21 Ark. App. 50, 728 S.W.2d 203 (1987), a case in which the court of appeals affirmed a chancellor’s decision to order the appellant to pay the appellee one-half of the funds from joint tenancy accounts that the appellant had transferred to an account in her name only upon the death of the third joint tenant. See Savage, 21 Ark. App. at 51, 728 S.W.2d at 203-04.

The undisputed proof in the case at bar showed that all of the money deposited in the joint banking account came from plaintiff. Defendant Lula Wright testified that none of the money deposited was hers; that she withdrew all of the money from the joint account, and that she did so only because plaintiff, her sister, had become incompetent, and that she was afraid that plaintiff would waste the little money she still retained from her late husband’s estate. Defendant Lula Wright testified that she did not claim any of the money as her own. Under these facts the chancellor, without expressly citing the statute and Hogan v. Hogan, and without using the word “trust,” correctly ruled that defendant Lula Wright held the money solely for the benefit of plaintiff. In the oral findings of fact the chancellor stated:

As far as the money that’s in . . . [defendant] Mrs. Wright’s name for the benefit of [plaintiff] Mrs. Dent, I’m of the opinion that it should probably remain there with Mrs. Wright posting a bond to show that the money is not used for anything except Mrs. Dent’s needs.
I’m of the opinion that for the present time Mrs. Dent is not capable of handling her business affairs, and this should be done by a guardianship, and I don’t know who could be appointed guardian.

After some discussion plaintiff’s attorney stated that he had asked a bank if it would serve as guardian, but the response was negative. Plaintiff’s attorney then asked if the court was also ruling that plaintiff was not competent to enter into a contingent fee contract with him. The court responded:

I’m just of the opinion after hearing the testimony today that she’s not competent to handle her affairs, and I just feel like someone needs to be handling her business affairs for her for the protection of this money that she has left. And I don’t know whoever I appoint, since you represented her, you would be entitled to be paid for services if that’s what you’re asking about.

Plaintiff’s attorney stated that he had exhaustively searched for someone to serve as guardian of plaintiff, but had not been able to find anyone willing to serve. The trial court then stated, “No funds will be withdrawn from that or anything happen to that until the time I appoint someone to take charge of the account.”

The written order of the court provides that plaintiff is found to be incapable of taking care of her estate and a guardian is appointed to receive her assets, and, “The monies which are held by [defendant] Lula Wright for the benefit of Orena Dent shall be transferred to the guardian of the estate and shall not be disbursed by the guardian without court order.”

In summary, the chancellor correctly ruled that the account was a joint tenancy with right of survivorship and that defendant Lula Wright had a right to withdraw the funds as a cotenant. The chancellor additionally found that plaintiff Dent deposited all of the money in the joint account, and when defendant Lula Wright withdrew the funds and placed them in an account in her name, she held the money for the benefit of plaintiff Orena Dent. This amounts to a holding that the money is held in a constructive trust. See Hogan, 313 Ark. at 381, 855 S.W.2d at 909.

Plaintiff does not question the above ruling. Instead, she argues that it was an insufficient recovery because, “The trial court erred in finding that appellee did not convert appellant’s funds.” The argument is without merit for a number of reasons. Contrary to the implication of plaintiff’s argument, the chancellor was not asked to rule on a wrongful conversion, and did not do so, and we will not reverse on an issue not raised or ruled upon. Newton v. Chambliss, 316 Ark. 334, 871 S.W.2d 587 (1994). In addition, we need not determine the issue of whether a conversion occurred because, even if it should have occurred, the proper measure of damages is the market value of the property at the time and place of the conversion. Burdan v. Walton, 286 Ark. 98, 689 S.W.2d 543 (1985). Plaintiff recovered that amount under the chancellor’s ruling, and cannot recover it a second time under a conversion theory. Sandusky v. First Nat’l Bank, 299 Ark. 465, 468, 773 S.W.2d 95, 97 (1989).

III.

Plaintiff’s third assignment is that the chancery court was without subject-matter jurisdiction to appoint a guardian for plaintiff. The argument has merit even though plaintiff acquiesced to the action in the chancery court.

The parties cannot waive subject-matter jurisdiction, and the issue can be raised at any time. Arkansas Dept. of Human Serv. v. Estate of Hogan, 314 Ark. 19, 858 S.W.2d 105 (1993). Jurisdiction of the probate court over all matters of guardianship, other than guardianships ad litem in other courts, is exclusive. Ark. Const. art. 7, § 34; Ark. Code Ann. § 28-65-107(a) (1987) (emphasis added). The section of the Arkansas Constitution that is now Article 7, section 34, did not consolidate the chancery and probate courts, and, while the judge of the chancery court is also the judge of the probate court, the judge conducts each court separately. Wooten v. Penuel, 200 Ark. 353, 140 S.W.2d 108 (1940). The section does not permit courts of chancery to lift matters over which the probate court has exclusive jurisdiction out of probate courts and apply equitable principles in disposing of controversies cognizable only in probate. Id. at 357-58, 140 S.W.2d at 111; see also Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810 (1976) (“probate courts are vested with exclusive jurisdiction in matters relative to . . . guardians. ...”); Thompson v. Dunlap, 244 Ark. 178, 424 S.W.2d 360 (1968) (holding that chancery and probate courts are separate tribunals, each having own jurisdiction and that a chancery court cannot “inherit jurisdiction” from probate court in same county); Janssen v. Blissenbach, 210 Ark. 22, 193 S.W.2d 814 (1946) (stating that the two courts are wholly distinct and operate independently of one another and that trial court, sitting as chancery in that case, correctly did not pass on questions reserved for probate). Consequently, the chancery court was without subject-matter jurisdiction to appoint a guardian of plaintiff’s estate, and we reverse and dismiss on this one point.

Affirmed in part; reversed and dismissed in part.

Glaze, J.,

dissenting in part.

I disagree only with point II of the majority opinion. To establish liability for the tort of conversion requires a showing that the defendant (here Lula Wright) wrongfully committed a distinct act of dominion over the owner’s property (here Orena Dent’s) which is a denial of, or is inconsistent with, the owner’s rights. If the defendant exercises control over the goods in exclusion or defiance of the owner’s rights, it is a conversion, whether it is for defendant’s own use or another’s use. Reed v. Hamilton, 315 Ark. 56, 864 S.W.2d 845 (1993).

Here Lula placed $4,745.50 of Dent’s funds into an account listed as “Lula Wright for Orena Dent.” One week later, Lula refused to return any of these funds to Orena. The evidence reflects that Lula was in a special position of trust regarding Orena, and was a dominant party in the control of Orena’s money. When Lula refused Orena access to her money, Lula clearly acted inconsistent with Orena’s ownership.

The majority opinion suggests that, when the trial court found Lula was holding the disputed funds in an account for Orena, the trial court in effect determined the money was held in constructive trust. That may be true but if the trial court impressed a constructive trust in these circumstances, that action was done for Orena’s beneficial interests and did not give Lula the right to retain Orena’s funds when she demanded their return.

A constructive trust is an implied trust and arises by the operation of law when equity so demands. Hall v. Superior Federal Bank, 303 Ark. 125, 794 S.W.2d 611 (1990). Also relevant to the situation at hand, the law is settled that, while a confidential or fiduciary relationship does not in itself give rise to a constructive trust, an abuse of confidence rendering the acquisition or retention of property by one person unconscionable against the other suffices generally to ground equitable relief in the form of the declaration and enforcement of a constructive trust. Id. Here, Lula and Orena are sisters and Lula enjoyed a confidential and fiduciary relationship with Orena, which included Orena’s executing a power of attorney in Lula’s name and Lula’s handling Orena’s money.

The trial judge found that Lula committed no fraud in handling her sister’s affairs, and the record supports that finding. Even so, Lula clearly controlled Orena’s funds, and for whatever reason, wilfully and contrary to Orena’s ownership rights, kept those funds from Orena when she demanded them.

Perhaps a proper guardianship of Orena’s estate would have resolved this issue concerning Orena’s money, but as discussed in point III of the majority opinion, the chancellor had no authority to impose one. Hopefully, when this cause is remanded to correct point III, the merits of point II can be properly resolved as well.

My main reason for writing is to emphasize disagreement with the majority opinion’s suggestion that a constructive trust under the facts of this case allowed Lula to exclude Orena from her money. To recover her funds, Orena was required to bring this suit. Contrary to the conclusion reached in the majority opinion, Orena never sought double recovery, nor would she have obtained a double award. Orena’s suit alleged undue influence, fraud and conversion of funds which she asserted resulted in compensatory and punitive damages. While no fraud was involved on Lula’s part, Orena still was entitled to her money upon demand. Instead Lula continues to withhold those monies, but now does so under an inappropriately imposed “frozen” constructive trust.


author: David Newbern, Justice.

text:
    Cynthia ALMOND v. CIGNA PROPERTY and CASUALTY INSURANCE COMPANY
    94-926
    908 S.W.2d 93
    Supreme Court of Arkansas
    Opinion delivered October 30, 1995

      Gary Eubanks & Associates, by: William Gary Holt and J. Gerard Schulze, for appellant.

      Friday, Eldredge & Clark, by: David D. Wilson, for appellee.
   David Newbern, Justice.

50-Off Stores, Inc. (50-Off), operates a retail store in which Cynthia Almond slipped, fell, and was injured. 50-Off is the named insured in a policy issued by Cigna Property and Casualty Insurance Company (Cigna). Coverage “A” of the policy insures 50-Off against liability claims resulting from its negligence. Coverage “C” reads, in part, as follows:

a. We will pay the medical expenses as described below for “bodily injury” caused by an accident:
(1) On premises you own or rent;
* * *
b. We will make these payments regardless of fault. These payments will not exceed the applicable limit of insurance.
* % *

Ms. Almond sued 50-Off in Monroe Circuit Court and recovered a judgment in the amount of $6,060. She also filed a claim with Cigna under coverage “C.” In response to the latter claim, Cigna paid Ms. Almond $1,328.25. Ms. Almond brought this action in Pulaski Circuit Court directly against Cigna, claiming her medical payments were in excess of the $5,000 policy limit under coverage “C” and thus Cigna owed her more than the amount paid. She argued she had standing to sue Cigna because she was a third party beneficiary of the insurance contract between 50-Off and Cigna.

The Trial Court entered summary judgment in Cigna’s favor, ruling that Ms. Almond was no more than an incidental beneficiary of the policy. Among its responses to Ms. Almond’s claim, Cigna pointed out to the Trial Court that the Monroe County judgment and all of Ms. Almond’s medical bills resulting from the accident had been paid, and that Ms. Almond was seeking to recover twice for the same claim. We agree that even if Ms. Almond has standing as a third party beneficiary, an issue we do not decide today, she may not have a double recovery, so we affirm the summary judgment in favor of Cigna.

A copy of the Monroe County judgment appears in the record in this case. While it is unsigned and not file-marked, Ms. Almond stipulates in her abstract that the judgment was entered. The judgment does not spell out the damage elements for which the $6,060 was awarded, but in a brief to the Trial Court in the case now before us, Cigna discussed the judgment entered against 50-Off in Monroe County and asserted, “Plaintiff’s medical bills have been fully and finally satisfied.” Nothing of record shows that Ms. Almond denied that assertion or responded to it.

In its brief submitted to us, Cigna states:

Yet, Almond has already been compensated for the reasonable and necessary medical expenses that a Monroe County jury found to have been proximately caused by the accident in its rendition of a verdict in the amount of $6,060. ... It is undisputed that this amount has been paid to Almond and satisfied by Cigna under the liability portion of the policy.... Yet Almond is now asking this Court to give her the opportunity to seek a double recovery.

In her reply brief, Ms. Almond does not contest that statement but says that Cigna is not entitled to a “set off’ of the amount it has paid absent language in the insurance contract or a statutory provision allowing it.

We see a distinction between the set off or recoupment concept and that of double recovery. A set off may be had when a defendant has a claim against the plaintiff which does not arise out of the transaction which is the subject of the plaintiff’s claim against the defendant. If the claim of the defendant arises from the same transaction, it may be called a recoupment. We discussed those concepts in Walker v. First Commercial Bank, N.A., 317 Ark. 617, 880 S.W.2d 316 (1994). See Ark. Code Ann. § 16-63-206 (1987). In this case, Cigna is not asserting a claim independently against Ms. Almond; it is defending on the double recovery principle, and Ms. Almond makes no response.

There are some instances in which, as a means of imposing a penalty, double, even treble, recoveries are permitted. See Lotz v. Cromer, 317 Ark. 250, 878 S.W.2d 367 (1991), and Dillon v. Resolution Trust Corp., 306 Ark. 173, 811 S.W.2d 765 (1991) (awarding double the amount of interest which was charged in violation of the Constitution’s usury provision). See also Revels v. Knighton, 305 Ark. 109, 805 S.W.2d 649 (1991) and Arnold v. Lee, 296 Ark. 339, 756 S.W.2d 904 (1988) (trebling damages in tort actions for trespass). This case is not one of them, and we have often expressed our general disapproval of allowing a claimant to recover more than once for the same injury. See, e.g., Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993); Thomas Auto Co., Inc. v. Craft, 297 Ark. 492, 763 S.W.2d 651 (1989). We have expressed that principle in cases involving recoveries from insurance companies in dealing with an insurer’s right to subrogation. See, e.g., Arkansas State Employees Ins. Advisory Comm. v. Estate of Manning, 316 Ark. 215, 870 S.W.2d 748 (1994); Shelter Mut. Ins. Co. v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992).

The record and briefs in this case leave us with no doubt that Ms. Almond’s claim for medical payments under coverage “C” would, if honored, result in a double recovery. We have been cited to no law which would require or permit us to ignore the general policy of declining to allow such a recovery. If we were to do as Ms. Almond requests and hold that she had a right to the payments as a third party beneficiary it would, in these circumstances, amount to no more than an advisory opinion. We do not render advisory opinions. Saunders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995); Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994).

While we do not reach the point on which the Trial Court decided this case, we may affirm for a different reason, West v. G.D. Scarle & Co., 317 Ark. 525, 879 S.W.2d 412 (1994); Register v. State, 313 Ark. 426, 855 S.W.2d 320 (1993); Hubbard v. The Shores Group, Inc., 313 Ark. 498, 855 S.W.2d 924 (1993), and we do so in this case.

Affirmed.


author: Robert L. Brown, Justice.

text:
    BILLY/DOT, INC. d/b/a Char-Lee’s Bingo v. Ron FIELDS
    95-228
    908 S.W.2d 335
    Supreme Court of Arkansas
    Opinion delivered October 30, 1995

      Mark Cambiano, for appellant.

      Winston Bryant, Att’y Gen., by: Angela S. Jegley, Senior Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Billy/Dot, Inc. d/b/a Char-Lee’s Bingo appeals a dismissal of its complaint for a declaratory judgment and for injunctive relief against appellee, Ron Fields, Prosecuting Attorney for the 12th Judicial District. The appeal has no merit, and we affirm.

Billy/Dot made certain factual allegations in its complaint for declaratory and injunctive relief but also posited its interpretation of Act 939 of 1993, now codified at Ark. Code Ann. § 26-52-1501 et seq. (Supp. 1993). According to Billy/Dot’s complaint, the General Assembly enacted Act 939 in 1993 because there was a dire need for funds for the State Medicaid program. The complaint states that to meet this need, the General Assembly determined that the State should engage in the bingo business to raise revenue or, alternatively, tax bingo operations. To induce persons knowledgeable about the bingo business to act as tax collectors, Billy/Dot asserted that the General Assembly passed Act 939 so that the State could derive essentially all the profits from a bingo operation, using a 20 percent tax on gross proceeds, and the bingo operator could realize a modest return. Billy/Dot alleged that it was licensed by the State to conduct the State’s bingo games in Ft. Smith and to collect the resulting revenues for the State. In 1993, Billy/Dot stated that it remitted approximately $90,000 to the State of Arkansas. To enable it to collect and remit these taxes, Billy/Dot stated that it incurred expenses for its building, equipment, supplies, and personnel, and, as a result, it had a real interest in determining the questions raised in its complaint.

Billy/Dot further alleged that the critical statements made to the prosecuting attorney about its bingo operation were inspired by Oklahoma residents who wanted Arkansas’s bingo business. Billy/Dot also asserted that the prosecuting attorney had threatened to take action against it to stop collection of revenues and to impose penalties. In its prayer for relief, Billy/Dot sought (1) a declaration that Act 939 was valid and that the prosecuting attorney had no standing to interfere with the revenue-producing activities of the State, and (2) injunctive relief.

Fields, as Prosecuting Attorney, moved to dismiss the complaint for failure to state a claim pursuant to Ark. R. Civ. P. 12(b)(6). Three reasons were cited in his motion: (1) Billy/Dot lacked standing to bring an action on behalf of the State; (2) chancery court lacked the authority to enjoin the prosecuting attorney from performing his duties; and (3) there was an absence of a justiciable controversy between the parties.

On December 22, 1994, the chancery court entered its order granting Fields’s motion to dismiss. In doing so, the court found that Billy/Dot did not state a justiciable cause of action because the parties to the litigation were not proper. Specifically, the court found that the administration of Act 939 was vested in the Director of the State Department of Finance and Administration and that neither the Director nor the State of Arkansas had been joined as a party to the action. The court further found that Act 939, by its express terms, did not purport to legalize bingo and that prosecution of bingo operations was a lawful prosecutorial function.

In determining whether a motion to dismiss was appropriately granted, we treat the facts alleged in the complaint as true and view them in the light most favorable to the party filing the complaint. Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994); Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). In making this determination, we look only to the allegations in the complaint and not to matters outside of the complaint. Neal v. Wilson, supra; Deitsch v. Tillery, supra. Bearing these standards in mind, we turn to Billy/Dot’s first point that the chancery court erred in finding that Billy/Dot lacked standing to bring the lawsuit. We initially note that we treat only the facts alleged in a complaint as true for purposes of a motion to dismiss but not a party’s theories, speculation, or statutory interpretation.

Billy/Dot mischaracterizes what Act 939 of 1993, now codified at Ark. Code Ann. § 26-52-1501 et seq. (Supp. 1993), provides. Act 939 does not place the State in the bingo business or provide that bingo operators are “partners” or “agents” of the State for purposes of collecting gross receipts taxes. What Act 939 does is levy a 20 percent tax on the gross receipts of bingo businesses, which revenues are earmarked for the State Medicaid program. It further provides that bingo operations must register with the State and that the taxes must be paid to the State Department of Finance and Administration by the fifteenth of each month. Without question, Act 939 views bingo operators as taxpayers under the Act and not tax collectors.

Moreover, the administration of Act 939 is expressly placed in the hands of the Director of the Department of Finance and Administration:

(a) The administration of this Act shall be vested in and shall be exercised by the Director [of the Arkansas Department of Finance and Administration] and shall be subject to the provisions of the Arkansas Tax Procedure Act, Arkansas Code §§ 26-18-101 et seq.
(b) The Director shall promulgate rules and regulations and prescribe forms for the proper enforcement of this Act.
(c) The tax levied hereunder shall be due and payable to the Arkansas Department of Finance and Administration in the same manner as provided for by Arkansas Code § 26-52-501, however tax payments under this Act shall be due and payable on the fifteenth of each month.

Ark. Code Ann. § 26-52-1506 (Supp. 1993).

In sum, Billy/Dot was not operating its bingo business under the aegis of the State by virtue of Act 939 or licensed by the State to collect taxes in any form or fashion under the Act, and the chancery court was completely correct in finding that Billy/Dot lacked standing to bring the lawsuit. See Gray v. Ragland, 277 Ark. 232, 640 S.W.2d 788 (1982). The chancery court further did not err in finding that the lawsuit was fatally defective because the Director of the Arkansas Department of Finance and Administration (the true tax collecting authority) and the State were not joined as parties. We agree with the chancery court that the absence of these vitally interested parties, in light of Act 939, renders this action for declaratory relief nonjusticiable. See Ark. Code Ann. § 16-11 l-106(a) (1987); see also Yamauchi v. Sovran Bank/Central South, 309 Ark. 532, 832 S.W.2d 241 (1992).

Finally, the chancery court appropriately concluded that it had no authority to enjoin a prosecuting attorney from closing Billy/Dot’s bingo operation and from imposing penalties. Our cases are legion that chancery courts will not interfere to enjoin anticipated criminal prosecutions. See, e.g., Deaderick v. Parker, 211 Ark. 394, 200 S.W.2d 787 (1947); Gordon v. Smith, 196 Ark. 926, 120 S.W.2d 325 (1938); Rider v. Leatherman, 85 Ark. 230, 107 S.W. 996 (1908). Billy/Dot advances the argument that it is conducting a business and that its business is a property right which can be protected by chancery court, even when the injunctive relief sought is against criminal prosecution. This issue was raised cryptically before the chancery court. However, because it was touched upon, we choose to address it.

While Billy/Dot is correct that a narrow exception has been carved out of the general principle that chancery court will refrain from interfering with prosecutorial functions, that exception is limited to the chancery court’s protection of property rights in the form of lawful businesses. See, e.g., City of Texarkana v. Brachfield, 207 Ark. 774, 183 S.W.2d 304 (1944); Esskay Art Galleries v. Gibbs, 205 Ark. 1157, 172 S.W.2d 924 (1943); Local Union No. 313 v. Stathakis, 135 Ark. 86, 205 S.W. 450 (1918). Here, there is no question but that playing bingo for money constitutes gambling which is a criminal offense under our statutes, and the chancery court so found. In doing so, the court correctly cited State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992), in its order.

Billy/Dot admits that it operates a bingo establishment where money is at risk, but it is wrong in contending that Act 939 legalizes bingo. The Act specifically does not make bingo legal, as is evidenced by its Emergency Clause:

[T]hat this tax and the requirement for annual registration are not intended to address any question of legality or illegality of the conduct of playing bingo;

Act 939 only provides for taxation of bingo revenues. Because there is no lawful business operation at issue here, there is no valid property right to be protected in this matter.

Affirmed.


author: Andree Layton Roaf, Justice.

text:
    Lisa BINNS, Richard Grasby, & Ron Oliver, Members of the Pulaski County Election Commission; Pat Tedford, Pulaski County Treasurer; Martin Gipson v. Ray C. HECK, Sr.
    95-250
    908 S.W.2d 328
    Supreme Court of Arkansas
    Opinion delivered October 30, 1995

      Nelwyn Davis, Pulaski County Attorney, Pamela D. Walker, Ass’t County Att’y, and Karla Burnett, Staff Attorney, for appellant Pulaski County Election Commission.

      Hilburn, Calhoon, Harper, Pruniski & Calhoon, Ltd., by: Sam Hilburn, Susan Gordon Gunter, and Randy L. Grice, for appellants.

      John T. Harmon and Job Serebrov, for appellee.
   Andree Layton Roaf, Justice.

This case involves an election contest. Appellant Martin Gipson defeated appellee Ray C. Heck Sr. for the position of Alderman of Ward One of North Little Rock. The appellee contested the election, filing suit against Gipson, the Pulaski County Election Commission and its members, and the Pulaski County Treasurer. The trial court ordered the Election Commission to hold a new election. On appeal, appellant Martin Gipson asserts the trial court erred in (1) failing to dismiss appellee’s petition requesting a new election, (2) denying his motion for directed verdict, and (3) ordering a new election. However, because Mr. Gipson’s notice of appeal is not in the record filed with this court, we do not consider his arguments. Appellant, the Pulaski County Election Commission, contends the trial court erred in ordering a new election. We agree that the trial court was without authority to order a new election; we reverse the order and dismiss the appellee’s action.

The election at issue was held on November 8, 1994; appellant Gipson defeated appellee Heck by 43 votes. On November 17, 1994, Heck filed a complaint in the Circuit Court of Pulaski County alleging that at precinct 518H at least 75 of the first 381 persons who cast ballots in the Ward One alderman’s race were residents of Ward Four. He further alleged the results for precinct 518H were 377 votes for him and 286 votes for Gipson, that he had contacted some of the persons who cast the illegal votes and that they indicated they cast their votes for Gipson. He asserted if all illegally cast ballots were removed, he would receive the majority of legally cast votes for Ward One, and should therefore be certified as the duly elected Alderman for Ward One.

The Pulaski County Election Commission and the County Treasurer answered, admitting that 65 voters who resided in Ward Four received ballots for the Ward One election. The Election Commission further asserted the complaint should be dismissed pursuant to ARCP Rule 12(b)(6) for failure to state a claim upon which relief can be granted because, based upon the assumption that the 65 invalidated voters voted in the same proportion as the other ballots cast, the plaintiff would still lose the election.

At a hearing held on December 29, 1994, the trial court entered an agreed order which stipulated that volunteers at precinct 518H mistakenly gave Ward One ballots to 65 Ward Four voters and directed the Pulaski County Election Commission to find the ballot stubs, set aside the 65 illegal ballots, and recount the remaining votes cast in precinct 518H. The order further provided that “The parties agree that if the Election Commission is unable to match a ballot with its stub, such ballot will not be set aside, but will be counted, and the inability to match such ballot to the stub will in no way invalidate this Consent Order and the agreement set forth herein by the parties to resolve this dispute.”

When the Election Commission could not locate the precinct 518H ballots, Heck filed a pleading entitled “Petition” in which he contended that he was entitled to another election. The trial court ultimately ordered the Election Commission to open all the ballot boxes from the November 8, 1991, general election to search for the missing Precinct 518H ballots. The Election Commission subsequently found the ballot stubs, but the ballots from precinct 518H were not located.

Finally, on February 27, 1995, the trial court entered an order directing the Election Commission to hold a new election in precinct 518H, in the Ward One alderman’s race between Heck and Gipson. In his findings of fact, the trial judge stated that a “search of all the boxes on February 13 and 14, 1995, produced none of the missing ballots from Precinct 518H.” The trial court further stated “the integrity of the ballot box in Precinct 518H has been destroyed.”

a. Gipson’s Notice of Appeal

The Election Commission timely filed a notice of appeal on March 1, 1995, and it is included in the record. A notice of appeal is attached as Exhibit 3 to Gipson’s brief on appeal, indicating his notice was also timely filed in circuit court, but this notice of appeal is not in the record filed with this court. Gipson’s notice of appeal is also on file in the Supreme Court Clerk’s office with a letter notifying the Clerk of Gipson’s appearance. A footnote in Gipson’s brief concedes the record failed to contain the notice of appeal, but Gipson asserts “a request has been made to the Circuit Clerk to supplement the transcript by including” the notice.

In any event, Gipson’s notice of appeal is not in the record, and there is no motion by Gipson to supplement the record with the notice of appeal. See Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993). Although the appellee does not raise the issue, we have stated that while some irregularities in the form of a timely notice of appeal do not deprive the appellate court of jurisdiction, the failure to give the notice in a timely manner is fatal to an appeal. Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995). Consequently, we are without jurisdiction to address Gipson’s points on appeal because the record does not indicate he filed a timely notice of appeal. Id. Further, although the Election Commission’s notice is timely and two or more parties may file a joint or consolidated appeal, the notice of appeal must “specify the party or parties taking the appeal” and only the Election Commission is named as appellant in its notice. Ark. R. App. P. 3(e); Ozark Acoustical Contractors v. National Bank of Commerce, 301 Ark. 472, 786 S.W.2d 813 (1990).

b. Appeal of Election Commission

The Election Commission contends the trial court erred in ordering a new election because of the total failure of proof. At trial, appellant Gipson moved for a directed verdict based upon a complete failure of proof, and the Election Commission joined in this motion, asserting Heck presented no evidence of how the challenged 65 votes were cast or if they were even cast in the Ward One race.

The trial court’s consent order dated December 29, 1994, provides that at precinct 518H, Ward One ballots were given to 65 Ward Four voters. At trial, Heck testified the Election Commission could not locate the ballots from precinct 518H. However, he presented no testimony concerning whether any of the Ward Four voters actually voted in the Ward One alderman election and, if so, for whom they voted.

In his complaint, Heck asserted that he “contacted some of the persons who cast illegal votes . . . and they have indicated that they cast their vote for Defendant Gipson.” Heck further alleged that following the removal of all illegally cast ballots, he would “receive the majority of legally cast votes for Alderman, Ward 1, City of North Little Rock and should therefore be certified as the duly elected Alderman for Ward 1, City of North Little Rock.”

We have stated that “a pleading which merely alleges the conclusion that the contestant received more legal votes than the contestee without alleging facts which would disclose that the result of the election was actually different from that shown by the returns does not state a cause of action.” Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980). In Jones v. Etheridge, 242 Ark. 907, 416 S.W.2d 306 (1967), the Court wrote:

It places no burden on contestants to require them to state the names of the voters who allegedly voted “wet” and illegally and to show that if alleged illegal votes were purged it would change the election results. Before one can in good faith contest an election, he must have knowledge of the persons who voted illegally, some knowledge of how the persons allegedly voted, and he must be able to show that if the votes were purged it would make a difference in the outcome of the election. Otherwise, an election contest would become a fishing expedition. An election by the people should not be so lightly impugned by those who only hope to find enough information to change the result of an election.

See also Simonetti v. Brick, 266 Ark. 551, 587 S.W.2d 16 (1979).

The appellee offered no evidence at trial of how the illegal votes were cast, and his complaint simply alleged that “some” of the people he contacted indicated they cast their vote for Gipson. In an election contest, official election returns are considered prima facie correct and the party contesting the election bears the burden of offering proof to set aside the results of the election. Phillips v. Earngey, 321 Ark. 476, 902 S.W.2d 982 (1995). Further, there is a presumption that all votes cast at the election were lawful until their authenticity is impeached by affirmative evidence. Id. Here, Heck simply failed to present proof that any of the 65 voters in question actually voted in the Ward One race, or that they voted for Gipson. See Forrest v. Baker, 287 Ark. 239, 698 S.W.2d 497 (1985).

The Election Commission also argues Arkansas election law does not provide for a new election as a remedy. Recently, we examined a comparable case. In Phillips v. Earngey, supra, Louise Berry died prior to the election, but she defeated Bill Earngey by one vote for the position of alderman for the City of Eureka Springs. Earngey filed a complaint alleging that more than 30 ineligible voters voted in the alderman’s election and that “all or a majority” of the illegal voters voted for Louise Berry. After granting a “joint motion” to set aside the election results, the trial court ordered the Carroll County Election Commission to conduct a special election for alderman. We held the trial court erred and stated:

The Board of Election Commissioners has no power to call or hold a new election and for the court to direct it to do so would be to confer a power that does not exist. See McFarlin v. Kelly, supra; McCoy v. Story, 243 Ark. 1, 417 S.W.2d 954; Langston v. Johnson, 255 Ark. 933, 504 S.W. 2d 349. Furthermore, it is the function of the legislature, not the courts, to create rights of action, or provide relief where means of redress have not been designated. McFarlin v. Kelly, supra.

(quoting Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980).)

The circuit court in the instant case erred in directing the Pulaski County Election Commission to hold an election in precinct 518H, in the Ward One alderman’s race between Heck and Gipson. The only issue involved in an election contest between two candidates qualified to hold the office is which one received more valid votes. Loyd v. Keathley, 284 Ark. 391, 682 S.W.2d 739 (1985). In essence, the circuit court is required to simply examine the election results, and, after excluding any challenged votes which are illegal, determine which candidate received more valid votes. See Forrest v. Baker, 287 Ark. 239, 698 S.W.2d 497 (1985); Loyd v. Keathley, 284 Ark. 391, 682 S.W.2d 739 (1985); Simonetti v. Brick, 266 Ark. 551, 587 S.W.2d 16 (1979). Once again, Heck failed to present proof that any of the 65 voters in question voted for Gipson; therefore, Heck’s action should have been dismissed.

Reversed and dismissed.

Special Justice Judith DeSimone joins in this opinion.

Corbin, J., not participating.


text:
    William E. BRYANT, Jr. v. Ted PUTNAM and Karen Putnam
    95-103
    908 S.W.2d 338
    Supreme Court of Arkansas
    Opinion delivered October 30, 1995

      Joel Taylor, for appellant.

      Mark S. Cambiano and Phil Stratton, for appellees.
   Andree Layton Roaf, Justice.

Appellant William E. Bryant, Jr., seeks reversal of a summary judgment dismissing his action against Appellees Ted and Karen Putnam, for injuries he suffered when he was bitten by dogs owned by the Putnams’ tenant. Appellees appeal the denial of A.R.C.P. Rule 11 sanctions. We affirm both the granting of the summary judgment and the denial of Rule 11 sanctions.

Appellees own a rental house in Conway, which they leased to Mona Jones. Appellant was attacked and injured by Ms. Jones’ rottweiler and pit bull dogs, while he was walking on a street adjacent to the rental house. Appellant filed suit against the appellees and Ms. Jones. He alleged the appellees were liable for injuries resulting from an unprovoked attack by dangerous or vicious animals kept by their tenant, and because they failed to provide adequate fencing in violation of a Conway city ordinance which prohibits dogs from running at large.

Appellees filed a motion for summary judgment with supporting affidavits alleging (1) they owned the property, (2) they were aware the tenant owned dogs but denied knowledge of any dangerous propensities of the dogs, (3) they had no proprietary interest in the dogs, (4) the attack occurred in the street adjacent to but not upon their premises, and (5) there was no legal basis set out in the pleadings, statutes or case law which would impute to them any liability for the appellant’s injuries. Appellant filed his response to appellees’ motion and attached affidavits of several neighbors who stated that (1) they observed the attack, and (2) the tenant knew that it irritated her neighbors for her to permit her dogs to run at large. Appellant presented no proof that appellees either knew the breed of dogs the tenant owned or knew of the dogs’ dangerous propensities.

Appellees also filed a motion for Rule 11 sanctions, asserting the appellant had no good faith basis for bringing suit against them. The court granted appellees’ motion for summary judgment, but denied their motion for Rule 11 sanctions. The trial court, in granting the summary judgment, found that it was undisputed that the tenant maintained dogs on property leased to her by the appellees, that the appellant was injured by the dogs in the street area and not on the leased property, and that liability of this nature has not been extended to landowners in Arkansas.

Appellant filed a non-suit of the action against the tenant and appeals the granting of appellees’ motion for summary judgment. Appellees cross-appeal from the trial court’s denial of their motion for Rule 11 sanctions. We find no error in either of the trial court’s rulings.

Summary Judgment

Summary judgment is a remedy that should be granted only when it is clear that there is no genuine issue of material fact to be litigated. Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994). Here, the affidavits presented by the appellees in support of their motion do not leave a material question of fact unanswered, see Reynolds v. Shelter Mutual Ins. Co., 313 Ark. 145, 852 S.W.2d 799 (1993), nor do the appellant’s affidavits present a genuine issue as to any material fact. See Wyatt, supra. In fact, none of the affidavits filed by either party put into dispute any of the facts alleged by the other.

However, the question of whether a duty is owed is always a question of law and never one of fact for the jury. Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994). See also 65th Center, Inc. v. Copeland, 308 Ark. 456, 825 S.W.2d 574 (1992). We have held there is a duty owed by owners of animals that cause injury to third parties, in a number of instances. We have held an owner of an animal to be liable for injuries inflicted by the animal if (1) the animal was of a vicious species or (2) the animal, though domesticated, had dangerous tendencies which were known to the owner. Van Houten v. Pritchard, 315 Ark. 688, 870 S.W.2d 377 (1994). We have also recognized some causes for ordinary negligence in allowing domesticated farm animals to run at large, and in allowing dogs to run at large in violation of a leash law. Finley v. Glover, 229 Ark. 368, 315 S.W.2d 928 (1958); Bolstad v. Pergeson, 305 Ark. 163, 806 S.W.2d 377 (1991). In Bolstad, supra, we held that violation of a leash law was some evidence of ordinary negligence. The Conway leash law relied upon by appellant in the instant case provides in pertinent part:

Any person owning, possessing or keeping a dog or dogs whether vaccinated or unvaccinated, licensed or unlicensed, shall confine such dog or dogs within an adequate fence or enclosure or within a house, garage or other building, or shall confine such dog or dogs by a chain or leash affixed to the dog’s collar and attached to some substantial stationary object adequate to prevent the dog from running at large, (emphasis added.)

Clearly, our cases and the Conway ordinance relied upon by appellant pertain to owners or keepers of animals, and not their landlords. Moreover, the ordinance does not mandate fencing as the only way to comply with the leash law.

The trial court was correct in finding that our laws impose no liability on a landlord to third parties injured by a tenant’s animals; the trial court thus correctly determined that there was no duty owed as a matter of law in granting the summary judgment. See Bartley, supra.

Rule 11 Sanctions

Appellees contend that the trial court erred in denying their motion for Rule 11 sanctions, because the appellant lacked a good faith basis to name them as defendants in his action. Arkansas Rule of Civil Procedure 11 provides in pertinent part:

The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or the needless increase in the cost of litigation ....

Both appellant and appellees agree that there is no Arkansas case law concerning landlord liability to third parties under the circumstances presented. Appellees assert that because we declined to hold a landlord liable to a tenant for injuries sustained in a common area in Bartley, supra, by implication, it should be clear that we would be even less willing to extend landlord liability to a third person injured away from the premises by a tenant’s animal. Appellees further contend that the cases from other jurisdictions relied upon by appellant do not support the appellant’s position and do not constitute a good faith argument for the extension of tort liability to landlords in Arkansas under the facts presented, because in every case the landlords were held liable only where the incident occurred on their property, or where they had knowledge of the dangerous propensity of the animal. See Siegel v. 1536-46 St. John’s Place Corp., 184 Mise. 1053, 57 N.Y.S.2d 473 (1945); Linebaugh by and through Linebaugh v. Hyndman, 213 N.J.Super. 117, 516 A.2d 638 (1986); Strunk v. Zoltanski, 62 N.Y.2d 572, 468 N.E.2d 13, 479 N.Y.S.2d 175 (1984); Virgil by and through Virgil v. Payne, 725 P.2d 1155 (Colo.App. 1986).

When a violation of Rule 11 occurs, the rule makes sanctions mandatory. Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988). 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). We have said that the imposition of sanctions is a serious matter to be handled with circumspection, and that the trial court’s decision is due substantial deference. Bratton v. Gunn, 300 Ark. 140, 777 S.W.2d 219 (1989). Rule 11 does not require that the legal theory espoused in an action prevail. Rather, the essential issue here is whether appellant fulfilled his duty of reasonable inquiry into the relevant law, and the indicia of reasonable inquiry into the law include the plausibility of any legal theory espoused and the complexity of the issues raised. See Crockett v. Wilson, 321 Ark. 150, 901 S.W.2d 826 (1995). Even though we reject appellant’s arguments for extension of tort liability to landlords in this instance, he has the right to advocate such a change in the law, and we cannot say the trial court abused its discretion in denying the appellees’ motion for sanctions.

Affirmed on direct and cross-appeal.


text:
    Glynn MOREHART v. DILLARD DEPARTMENT STORES and Hot Springs Mall Associates
    95-274
    908 S.W.2d 331
    Supreme Court of Arkansas
    Opinion delivered October 30, 1995
    [Petition for rehearing denied December 4, 1995.]

      Q. Byrum Hurst, Jr., for appellant.

      Anderson & Kilpatrick, by; Randy Murphy, for appellee Dillard Department Stores.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: Michael L. Alexander and Derek J. Edwards, for appellee Hot Springs Mall Associates.
   Andree Layton Roaf, Justice.

Appellant Glynn Morehart seeks review of a directed verdict.granted in the jury trial of his action against appellees Dillard Department Stores and Hot Springs Mall Associates, for injuries he suffered in a fall. We affirm the trial court’s granting of the appellees’ motions for directed verdict.

Appellant entered Dillard’s Department Store located in the Hot Springs Mall by way of a handicap ramp, made a purchase, and exited using the same ramp. As he descended the ramp, he fell and broke his leg. Appellant filed suit alleging his injuries were caused by the negligence of the appellees. His complaint suggested a number of possible causes of his fall: (1) that the handicap ramp was negligently constructed because it was built with horizontal grooves (2) that the paint on the ramp was unsafe, and (3) that the slope of the ramp did not comply with certain building codes.

The case was tried to a jury in Garland County Circuit Court. Appellant presented the testimony of witnesses regarding the construction of the ramp and the painting of the ramp. Appellant testified that it had been raining on the day of the incident and the ramp was painted with a slick, shiny, yellow enamel paint and that there were wet leaves on the ramp. He further testified that he did not recall slipping and did not know how he fell. Although appellant’s expert witness testified that the ramp was not constructed to drain water properly, he offered no opinion regarding the cause of appellant’s fall. In sum, there was no evidence presented that water, paint, or a defective condition of the ramp caused the appellant’s fall. At the close of appellant’s case-in-chief, appellees moved for directed verdict based on the insufficiency of appellant’s evidence, and the trial court granted the motions.

Appellant argues that the trial court erred in granting the motions for directed verdict, because he presented sufficient evidence that his accident was caused by the negligence of the appellees. In determining whether a directed verdict should have been granted, we review the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Lytle v. Wal-Mart Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992). A motion for directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993). Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed. Howard v. Hicks, 304 Ark. 112, 800 S.W.2d 706 (1990).

The law is quite settled that a property owner has a general duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees. Dye v. Wal-Mart Stores Inc., 300 Ark. 197, 111 S.W.2d 861 (1989). According to Mankey, supra:

In order to prevail in a slip and fall case, a plaintiff must show either (1) the presence of a substance upon the premises was the result of the defendant’s negligence, or (2) the substance had been on the floor for such a length of time that the appellee knew or reasonably should have known of its presence and failed to use ordinary care to remove it.

Here, appellant Morehart has failed to meet either of the criteria. The mere fact that he fell does not give rise to an inference of negligence. See Mankey at 17. See also Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1994). Although he proposed several possible causes for his fall, including the presence of water and wet leaves, possible causes, as opposed to probable causes, do not constitute substantial evidence of negligence. Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994). Further, the presence of a foreign or slick substance which causes a slip and fall is not alone sufficient to prove negligence. Mankey at 17. It must be proved that the substance was negligently placed there or allowed to remain. Id. Appellant testified that he did not know how long the ramp had been damp or how long leaves had been on the ramp.

The burden is always on the party asserting negligence to prove it, as negligence is never presumed. Arkansas Kraft v. Cottrell, 313 Ark. 465, 855 S.W.2d 333 (1993). To establish a prima facie case of negligence, appellant must show that he sustained damages, that the defendants were negligent, and that such negligence was a proximate cause of his damages. Id. at 470. While a party may establish negligence by direct or circumstantial evidence, he cannot rely upon inferences based on conjecture or speculation. Arkansas Kraft at 471. Appellant, in this instance has failed to establish a prima facie case of negligence based on the presence of a foreign substance.

As to appellant’s allegations that the ramp was negligently constructed, we addressed a similar situation recently in the negligence action of Jenkins v. Hestand’s Grocery, Inc., 320 Ark. 485, 898 S.W.2d 30 (1995). The appellant in Jenkins made a purchase in appellee’s grocery store, attempted to exit the store, and fell before she reached her vehicle. She argued that her fall occurred when she stepped in the middle of the slope of a ramp and her foot went forward from under her. In granting the appellee’s motion for summary judgment, the trial court remarked that there had been no presentation of an affidavit or other evidence by a person with requisite skills and training to say that the condition in question was dangerous. Id. at 487.

This court recounted in Jenkins that the duty of appellee to its invitees, such as Ms. Jenkins, is clearly stated in Restatement of Torts 2d, § 343, as follows:

A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to remain upon the land without exercising reasonable care
(i) to make the condition reasonably safe, or
(ii) to give a warning adequate to enable them to avoid the harm.

Jenkins at 487. In that case, we determined that not only did appellant fail to show that the condition she alleged to have caused her fall constituted a “danger” or that it presented an “unreasonable risk” to invitees, there was nothing before the trial court to indicate that appellee had any knowledge whatever that the ramp was dangerous or involved an “unreasonable risk” to its invitees.

Similarly, in this instance, the appellant has failed to show that appellees were indeed negligent in the construction or painting of the ramp. There was no showing during the plaintiff’s case-in-chief that the ramp constituted a “danger” or that it presented an “unreasonable risk” to invitees, nor was there a showing to indicate that appellees had any knowledge that the ramp was dangerous or involved an “unreasonable risk” to its invitees.

In sum, there was no evidence presented that either water, leaves, paint, or a defective condition of the ramp caused appellant’s fall. We have long held that substantial evidence is not present where a factfinder is merely given a choice of possibilities which require the jury to conjecture or guess as to a cause. Arkansas Kraft at 471. Moreover, appellant is not sure why he fell. In fact, appellant could not even testify that his fall resulted from having slipped.

After hearing arguments of counsel, the trial court recessed to consider the evidence and legal authority presented. After this undertaking, the trial court stated:

Well, I hate to take a case away from the jury, but in reviewing the evidence presented in plaintiff’s case, the court is going to grant the motions of defendants for directed verdict. And for the record, I’m going to say that the testimony and evidence presented by the plaintiff indicates the plaintiff cannot say that he slipped at all, and particularly, if he did slip, what he slipped on. There is no evidence that he slipped because the ramp was improperly designed or that it was too steep. There’s no evidence that he slipped on or because of any paint that was on the ramp. There’s no evidence that he slipped because of water, debris or leaves or whatever else — cigarette butts or whatever else. I just find there’s no substantial evidence of negligence on the part of any of the defendants so I’m going to grant the directed verdicts.

Viewing the evidence in the light most favorable to the appellant, we hold the trial court was correct in directing a verdict in favor of the appellees.

Affirmed.


author: Per Curiam.

text:
    Johnnie HUCKABEE v. STATE of Arkansas
    CR 95-1072
    908 S.W.2d 95
    Supreme Court of Arkansas
    Opinion delivered October 30, 1995

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

Johnnie Huckabee, by his attorney, has filed

a motion for a rule on the clerk. His attorney, Jon A. Williams, admits by motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion is, therefore, granted.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Bruce Earl WARD v. STATE of Arkansas
    CR 93-823
    908 S.W.2d 346
    Supreme Court of Arkansas
    Opinion delivered October 30, 1995

      William R. Simpson, Jr., Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Oían W. Reeves, Senior Asst. Att’y Gen., for appellee.
   Per Curiam.

On October 2, 1995, this Court issued a Per

Curiam Order remanding the above styled case for a new sentencing trial because of numerous errors and omissions in the record, reported by substitute court reporter, Shelley J. Davis. A copy of that Per Curiam is attached.

The Court now refers this matter to the Board of Certified Court Reporter Examiners to conduct the necessary proceedings to determine whether disciplinary action should be taken against court reporter Shelley J. Davis.


text:
    Eric WEST v. STATE of Arkansas
    CR 95-786
    908 S.W.2d 96
    Supreme Court of Arkansas
    Opinion delivered October 30, 1995

      Kearney Law Offices, by: Jeffrey H. Kearney, for appellant.
    No response.
   Per Curiam.

On October 9, 1995, this Court issued a Per Curiam Order granting appellant’s Petition for Writ of Certiorari to complete the record in the above-styled case after official court reporter, Val Dixon-Sims, informed appellant’s counsel that her storage room had been vandalized and that she was therefore unable to transcribe the record. A copy of that Per Curiam is attached.

The security of records used to produce appellate transcripts is a matter of great concern to this Court. We refer this matter to the Board of Certified Court Reporter Examiners to conduct the necessary proceedings to determine whether there has been any violation of the Board’s regulations.

Further, in light of our Per Curiam of October 16, 1995, adopting a records retention schedule for official court reporter records, we direct that the Board advise us on how security of stored court reporter records can be better insured.


author: Bradley D. Jesson, Chief Justice.

text:
    Kelly Sean O’NEILL v. STATE of Arkansas
    CR 95-442
    908 S.W.2d 637
    Supreme Court of Arkansas
    Opinion delivered November 6, 1995

      Doug Norwood, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Bradley D. Jesson, Chief Justice.

The appellant, Kelly Sean O’Neill, was convicted in municipal court of a violation of the implied consent law, codified at Ark. Code Ann. § 5-65-205 (Repl. 1993). O’Neill appealed his case to circuit court, and in a bench trial, the circuit judge affirmed his conviction and suspended his driver’s license for six months. His sole point of error on appeal is that the circuit court erred in not declaring the implied consent statute unconstitutional. We affirm.

The case was tried on a stipulation of facts. O’Neill conceded that officers had reasonable cause to request that he submit to a chemical test. Rather, he asserted at trial below as he does now on appeal that the implied consent statute has three different penalty provisions depending on the state of residence of the offender and the status of his driver’s license, and that these provisions are violative of the due process clause of Ark. Const, art. 2, § 8, and the equal protection clause of Ark. Const, art. 2, § 3 and § 18. O’Neill also complains that the statute allows for enhanced penalties for an Arkansas resident who has a valid driver’s license and prior violations, while there are no enhanced penalties for subsequent offenses committed by a resident without a license or a nonresident. Finally, O’Neill asserts that the statute is unconstitutional because it provides that a nonresident’s driving privileges may be suspended indefinitely. See Ark. Code Ann. § 5-65-205(e)(l) (Repl. 1993).

We recently disposed of these very arguments in Cook v. State, 321 Ark. 641, 906 S.W.2d 681 (1995). In examining the implied consent statute under a rational basis standard, we observed that, while the legislature has created varying penalties for violation of the statute’s mandates, possession of an Arkansas driver’s license carries with it the implied obligation to abide by state driving laws. Id. at 648. We further recognized that both Arkansas residents who drive without a valid driver’s license and nonresidents who drive while their license or driving privilege is under suspension are subject to additional punishment. See Ark. Code Ann. § 27-16-301 and § 27-16-303 (Repl. 1994). Taking these factors into consideration, we concluded that the varying punishments of the implied consent statute were not devoid of a legitimate purpose. Id. at 649.

Like the appellant in Cook, O’Neill has no standing to challenge the validity of § 5-65-205(e)(l), which provides that a nonresident’s driving privileges may be suspended indefinitely. O’Neill, who was an Arkansas resident at the time of the offense, has not suffered injury as a result of this provision, nor does he belong to a class which is prejudiced by the law. Id.

For the reasons set out in the Cook case, we affirm the decision of the circuit court.


author: Robert H. Dudley, Justice.

text:
    STATE of Arkansas v. Mike GRAY and Debbie Gray
    95-469
    908 S.W.2d 642
    Supreme Court of Arkansas
    Opinion delivered November 6, 1995

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

      Castleman Law Firm, by: Bob Castleman, for appellees.
   Robert H. Dudley, Justice.

The State sought forfeiture of a Chevrolet van that was allegedly used to transport drugs, but was notified that there was a first lien against the van in excess of its market value. The State then sought forfeiture of some of appellees’ other assets that were not mortgaged. The trial court dismissed the action. We reverse and remand for further proceedings.

Much of our discussion of this case in our decisional conference involved the procedure below and whether the State was required to make a proffer of evidence to preserve its point of appeal. Consequently, we first discuss the procedure below in detail.

On July 1, 1994, the State gave appellees Mike and Debbie Gray notice that it had seized their Chevrolet van and the telephone and citizens’ band radio inside it, and intended to cause the van to be forfeited because it had been used to facilitate the transportation of drugs. See Ark. Code Ann. § 5-64-505 (Repl. 1993). Appellees responded by filing a notice of “Judicial Referral of Forfeiture” on the ground that the van was mortgaged to a bank and the outstanding debt was $5,058.09. Appellees attached a copy of the note and the security agreement and the certificate of title that reflected the bank’s existing lien. Appellees additionally pleaded that the van was used by appellee Debbie Gray in her business and that irreparable harm would be caused if it were not returned to her.

On August 24, 1994, the case was called for trial by the trial court, and the State moved for a continuance. The trial court granted the continuance, but ordered the van returned to appellees pending a determination of forfeiture. The trial court then set the trial for October 3, 1994, directed the parties to establish the value of the van as of August 24, rather than the date of trial, and ordered the attorneys to file pretrial briefs on the issue of any substitution of assets for the van no later than October 3, 1994.

On October 3, 1994, the State filed a petition for substitution of assets and a supporting memorandum of law. The State alleged that appellee Mike Gray used the van in selling or receiving a controlled substance; consequently, the van was subject to forfeiture under Ark. Code Ann. § 5-64-505. However, the State admitted that a valid lien existed in the amount of $5,058.09 and that a forfeiture action was subject to the first lien. The State then contended that, because the van was subject to the prior interest, it was entitled to forfeiture of any of appellees’ other property up to $4,500, the fair market value of the van, in accordance with Ark. Code Ann. § 5-64-505(o). Appellees filed a brief the same day in which they contended that the State was not entitled to substitute property in place of the van; rather, the State was entitled to forfeiture of only that property listed as subject to forfeiture in Ark. Code Ann. § 5-64-505(a)(1)—(6).

The proceeding on October 3 did not commence with the trial court asking if the parties were ready for trial. Rather, the court asked for argument only on the forfeiture issue, as follows:

The Court: Let’s do an argument on that forfeiture. Let’s see if I’m going to decide it now.
Mrs. Huff [Deputy Prosecuting Attorney]: On the brief?
The Court: Yeah. Just give me an oral argument on it. All right, this is on the forfeiture and the vehicle has been returned?

During the arguments, the State and appellees stipulated to the fact that the van was encumbered by a prior security interest and the security interest exceeded the fair market value of the van. Appellees’ counsel then stated:

And the issue then, Your Honor, becomes whether or not the state can substitute other collateral or assets of the defendant in lieu of that property sought to be forfeited if that property is encumbered to an extent to where there is no value left for the drug task force to seize.

In summary, the issue before the trial court was whether the State could substitute any other assets of appellees up to the value of the van if the State proved that the van was subject to forfeiture. If the court ruled that the State could substitute other assets, then, presumably, the State would have proceeded with its evidence. However, the court did not decide the substitution issue. From the following colloquy at the end of the hearing, it can be seen that the trial court was unwilling to address the merits of the case before it reached a decision on the substitution issue:

The Court: Well, I’m going to take this home and study on it just a bit.
Mr. Castleman [Appellees’ attorney]: Without even filing any criminal proceedings?
The Court: Yes, sir. I’m going to study on this thing because that’s, without any cases, that’s a pretty big jump.
Mrs. Huff [Deputy Prosecuting Attorney]: If we find any other law, can we supplement it?
The Court: You sure can. I’d like to see it.
Mr. Castleman: I would also, your Honor.
The Court: That’s, that’s pretty stout.
Mr. Castleman: May we be excused for the day, Your Honor?
The Court: Yes, why not?

On February 10, 1995, or over four months later, the trial court denied the State’s petition for asset substitution and dismissed the State’s case for forfeiture. The trial court found that the van was encumbered by a prior security interest which was greater than the value of the van, and reasoned that, if the applicable statute did not provide for substitution of other assets, there was no point in proceeding with evidence about either forfeiture or the substitution of assets. As a result, the trial court dismissed the action.

Appellees contend that the State is procedurally barred from raising its point on appeal, which involves the substitution issue, because it did not proffer evidence in the trial court to prove that it was entitled to forfeiture of the van. Appellees cite A.R.E. Rule 103(a)(2). The argument is not persuasive.

The trial court asked for briefs on the issue of forfeiture and the substitution of assets, asked for arguments on that issue, heard arguments on that issue, took that issue under advisement, and subsequently ruled on that issue as a matter of law. Even though appellees did not move for summary judgment and that term was never used, the trial court’s ruling was tantamount to a summary judgment in favor of appellees.

Arkansas Rule of Evidence 103 applies to rulings on evidence. Subsection (a)(2) provides that when an objection to evidence has been sustained, the proponent of that evidence must make a proffer of evidence to preserve the issue. Here, the trial court never asked the parties if they were ready to try the case on the merits or if they wished to present evidence. The trial court did not make any evidentiary rulings. It is obvious that the trial judge thought that, if he should rule as he ultimately did, there was no need to try the case on its merits. The cited rule of evidence is not applicable to a hearing that was limited to the construction of a statute as a matter of law. Thus, we reach the State’s point of appeal.

The State contends that the trial court erred in denying, as a matter of law, its petition requesting substitution of “any other property” owned by the appellees when the van was exempt from forfeiture because it was encumbered by a bona fide security interest. The argument is well taken.

Arkansas Code Annotated § 5-64-505 (a) provides in pertinent part:

(a) The following are subject to forfeiture:
(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in subdivision (a)(1) or (2), but:
(iv) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if he neither had knowledge of nor consented to the act or omission.

In the present case, appellees’ van was seized and a notice of seizure for forfeiture and a lis pendens were filed pursuant to 5-64-505(a)(4). Appellees filed a notice of judicial referral and raised the objection that the van was encumbered by a security interest as excepted from forfeiture by Ark. Code Ann. § 5-64-505(a)(4)(iv). Appellees’ objection to forfeiture of the van was well taken.

The State then requested the trial court to allow it to substitute any other property of appellees for the van since the van was not subject to forfeiture. The State relied on Ark. Code Ann. § 5-64-505(o), which provides:

(o) The court shall order the forfeiture of any other property of a claimant or defendant up to the value of the claimant’s or defendant’s property found by the court to be subject to forfeiture under subsection (a) of this section if any of the forfeitable property had remained under the control or custody of the claimant or defendant and:
(6) Is subject to any interest exempted from forfeiture under this subchapter.

Ark. Code Ann. § 5-64-505(o) (Repl. 1993) (emphasis added).

In interpreting statutes, this court gives words their ordinary meaning and, at the same time, attempts to give effect to the legislative intent. State v. Johnson, 317 Ark. 226, 228, 876 S.W.2d 577 (1994). The adjective “any” means “all” or “every” or “of every kind.” The word “other” means different or distinct from that already mentioned, additional, or further. The word “property” means that which belongs to a person. Black’s Law Dictionary, 94 (6th ed. 1990). The words “any other property” used in subsection (o) mean additional property of any kind owned by the defendant.

In addition to giving effect to the plain meaning of the words used in the statute, this interpretation complies with the stated purpose of the act. The comment to section 505 of The Uniform Controlled Substances Act provides:

Effective law enforcement demands that there be a means of confiscating the vehicles and instrumentalities used by drug traffickers in committing violations under this Act. The reasoning is to prevent their use in the commission of subsequent offenses involving transportation or concealment of controlled substances and to deprive the drug trafficker of needed mobility.

Section 5-64-505 of the Arkansas Code Annotated was amended by Act 1050 in 1991 to add subsection (o). The addition of subsection (o) to the statute provides an effective safeguard, because without the provision, drug traffickers could encumber their property that would become subject to forfeiture under 5-64-505(a) and completely evade the forfeiture provision. Thus, interpreting subsection (o) to apply to all assets, whether or not listed in subsection (a), complies with the intent of the General Assembly.

The Ninth Circuit Court of Appeals interpreted a comparable federal statute in a like manner. In United States v. Ripinsky, 20 F.3d 359 (9th Cir. 1994), the court addressed the substitution of assets as provided in 21 U.S.C. § 853(p) (1994). In that case, the defendant was charged with violating conspiracy, bank fraud, wire fraud, money laundering, and forfeiture statutes. The government obtained a temporary restraining order freezing assets valued at $1,745,500 that would be subject to forfeiture if the defendant were convicted of money laundering. Part of the amount frozen was released, and then a second amount was again frozen. Ultimately, there were two preliminary injunctions freezing the amounts of $745,000 and $272,500. The parties agreed that the assets were not connected to the money laundering charges. The issue was whether the government could restrain substitute assets prior to conviction. The court held that the government could not restrain substitute assets prior to conviction, but in so holding stated:

Finally, the law provides that if, upon conviction, forfeitable assets are unreachable by the government, the court shall order the forfeiture of substitute assets: property of the defendant that is not connected to the underlying crime. 21 U.S.C. § 853(p).
While it is clear that upon conviction the government may seize substitute assets if the forfeitable assets are unavailable, the question in this case is whether the government may restrain substitute assets prior to conviction.

Id. at 362. Section 853(p) of 21 U.S.C., which was being applied, contains wording similar to Ark. Code Ann. § 5-64-505(o), the provision at issue in this case.

In summary, we hold that under Ark. Code Ann. § 5-64-505(o), the State may proceed to seek forfeiture of “any other assets,” even though they are not connected to the underlying crime, when forfeitable assets used in the underlying crime are unreachable under the provisions of Ark. Code Ann. § 5-64-505 (a)(4)(iv) (Repl. 1993).

Reversed and remanded for proceedings consistent with this opinion.