author: Steele Hays, Justice.

text:
    Lula Anna DOPP, Individually and as Trustee for Margaret T. Piper; Margaret T. PIPER, Individually; and Lula M. HOOVER v. SUGARLOAF MINING COMPANY, An Arkansas Corporation; Spencer BOVARD, Individually and as Administrator of the Estate of Patricia Ann Bovard; et. al.
    85-98
    702 S.W.2d 393
    Supreme Court of Arkansas
    Opinion delivered January 13, 1986
    [Rehearing denied February 24, 1986.]

      Hardin, Jesson & Dawson, by: Betsy Hall, for appellant.

      Harper, Young, Smith & Maurras, by: Robert Y. Cohen, II, for appellee Spencer Bovard, individually and as administrator.

       Purtle, J., not participating. Hickman, J., would strike brief.

   Steele Hays, Justice.

This case concerns the validity of a 1946 declaration of trust which the appellants claim is either a forgery or was obtained by fraud. The disputed instrument, which we will refer to as the Bovard trust, affects the ownership of an undivided one-third interest in 2,883 acres in Sebastian County, Arkansas, containing valuable coal deposits. The chancellor upheld the Bovard trust, but we must reverse that ruling.

Appellee, Spencer Bovard, is the surviving spouse of Dorothy Bovard, who died intestate in 1965. Appellants, Lula Anna Hoover Dopp and Lula May Hoover Deleon, are the widow and daughter of John A. Hoover, who died intestate in 1948. Appellants are the undisputed owners by descent of an undivided two-thirds of the Sebastian County lands. This litigation involves the remaining one-third.

In August, 1946, John A. Hoover bought the entire tract for $35,000 from the First National Bank of Ft. Smith, trustee of the Northwestern Coal and Mortgage Company, Inc. On June 10, 1947 Hoover and his wife executed an agreement with Margaret T. Piper reciting that the three of them had acquired the property at a cost of $37,500, purchase price and expenses; that Margaret T. Piper had given John Hoover $12,500 and the Hoovers had paid the balance in cash and by a loan of $11,000 from the First National Bank of Ft. Smith, secured by a mortgage on the property. Under the agreement Mrs. Piper would not be responsible for any part of the $ 11,000 note and mortgage and because she did not want her interest to appear of record, the Hoovers were to hold the property in trust for her. The agreement provided that at the death of Mrs. Piper her interest would terminate.

The Bovard trust purportedly bears the signature of John Hoover, dated November 6,1946, and recites that Hoover holds title to the land in trust for himself, Margaret Piper and Dorothy Bovard, the wife of Spencer Bovard. The Bovard trust makes no mention of Lula A. Hoover, nor of the fact that Margaret Piper’s interest is for life only, nor that she did not want her interest to appear of record. It is undisputed that Mr. Guy Green, an attorney in Kansas City representing John Hoover, prepared the Piper trust. Spencer Bovard contends that Green prepared the Bovard trust as well. The Piper trust was recorded on February 19, 1948, the Bovard trust on May 7, 1948.

Proceedings Below

The current litigation began in 1981 when Sugarloaf Mining Company filed this interpleader of coal royalties. Named as defendants were Lula Anna Hoover Dopp, Lula May Hoover Deleon, Spencer Bovard, Margaret T. Piper, James H. Anderson, a lawyer hired by Spencer and Dorothy Bovard in 1963 to pursue their claim, and Marie Nugent, the widow of Anthony P. Nugent, Sr. Mr. Nugent was also hired by the Bovards in association with Mr. Anderson. The Bovards had contracted with Anderson and Nugent for one-half of any recovery and had given them a mineral deed conveying one-half of any minerals recovered from the lands.

By various cross-pleadings the issues were joined. Mrs. Dopp and Mrs. Deleon relied on the Piper trust, claiming the Bovard trust was a forgery or was obtained by fraud. Spencer Bovard relied on the Bovard trust and alleged that Anderson and Nugent had failed to pursue the Bovard claim.

The chancellor upheld the Bovard trust, and Mrs. Dopp and Mrs. Deleon have appealed. They submit the chancellor erred in not finding the Bovard trust was barred by forgery or fraud, in allowing the introduction of inadmissible evidence, and in not sustaining the claims of laches and adverse possession. We find the evidence clearly preponderates against the claim of Spencer Bovard, that the Bovard trust is either a forgery or was obtained by fraud.

Background Facts

This is an extraordinary case. The factual issues, extending back over forty years, are complex. There are accusations of murder. Except for Mrs. Dopp, Mrs. Deleon and Mr. Bovard, the individuals whose testimony could be material are now dead: John Hoover in 1948, Dorothy Bovard in 1965, Margaret Piper in 1979, Guy Green in 1950 and, others. Two of those deaths were violent: John Hoover was murdered on the night of February 10, 1948; Dorothy Bovard died on February 3, 1965 from a self-inflicted gunshot wound to the head. The murder of John Hoover was never solved. Mrs. Dopp and Mrs. Deleon testified to their firm belief that Spencer Bovard was responsible for John Hoover’s death. Surprisingly, the record is devoid of any response from Mr. Bovard to those startling accusations.

De Novo Review of Chancery Cases

Ordinarily, we do not reverse a chancellor where the decision turns largely on disputed facts and witness credibility, as we accede to his superior position to observe the witnesses and gauge their demeanor. But witness demeanor is simply one criterion of determining credibility, and when one version of the facts cannot be reconciled with undisputed versions, or is rendered too implausible to be believed when measured against common experience, then demeanor cannot override other equally reliable criteria. Moreover, chancery cases are tried de novo and when we find our own review of the record to be in marked disagreement with the chancellor’s findings it is our duty to reverse. ARCP 52. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Walt Bennett Ford v. Pulaski County Special School District, 274 Ark. 208, 623 S.W.2d 186 (1981).

Hoover Testimony

In January 1945 the Hoovers were living in Kansas City. Lula May Hoover worked in a coffee shop frequented by Spencer Bovard. When he asked her for dates, she told him he could come to her home and meet her parents, which he did. Over the months that followed he became like a member of the family, even proposing marriage to Lula May Hoover.

During his visits, Spencer Bovard began to discuss with John Hoover the land in Arkansas. It had belonged to the Northwestern Coal and Mortgage Company which had dissolved in 1922. Some of the stock belonged to the estate of Spencer Bovard’s great uncle, John H. Bovard. Spencer Bovard was a co-administrator of the estate.

John Hoover had mining experience and with Spencer Bovard’s encouragement he became interested in acquiring the land, which could be bought for $35,000. By corresponding with Mr. S.B. Stevenson, Vice President of the First National Bank of Ft. Smith, and with the partial backing of Margaret Piper, John Hoover managed to arrange the purchase, with the bank agreeing to lend him $ 11,000 of the purchase price. Guy Green handled the necessary legal work.

Lula May Hoover was employed out-of-state after April of 1945 but while at home on visits her father would discuss plans to purchase the property. He proposed to sell their home and a rent house in Kansas City and to borrow on his life insurance. The family would move to Arkansas and use the coal and timber from the land to pay off the balance of the purchase price. By August, 1946, her father had bought the land with Margaret Piper’s help. He was excited about the prospects and told Lula May that Spencer Bovard had made it possible for him to acquire the land, that he hoped Spencer would help him develop the property and when the original investment had been repaid, he thought he would give Spencer a one-third interest.

Lula May Hoover returned to Kansas City in January, 1948. By then her parents were at the point of moving to Arkansas. She testified that something had happened to change her father’s attitude toward Spencer Bovard. On Sunday, February 8, Lula May and her father drove to another part of the state on business. Her father was so upset his driving was affected and she took the wheel while he discussed his affairs in resume. He told her he planned to disassociate himself immediately from Spencer Bo-vard. Although he had discussed other intentions with her, he said they would never come to pass. She took it that while she was away Spencer had been in Arkansas to pump water from an abandoned mine shaft referred to as “the old Northwestern,” but that for reasons he did not explain her father did not intend to have any further connection with Spencer Bovard. She testified that on Tuesday, February 10, her father was with Spencer Bovard and that evening he attended the Golden Glove fights but never came home. His body was found on February 14 in a remote section of Kansas City, bound and gagged in the backseat of his car. He had been struck on the back of the head but had died from smoke inhalation from an attempt to burn the interior of the car. Mrs. Dopp and Mrs. Deleon testified to actions and statements by Spencer Bovard after the death of John Hoover which raised their suspicions to the point they became terrified of him, and wanted no further contact with him.

Bovard Testimony

Spencer Bovard testified that because of Hoover’s mining experience he told Hoover about the Northwestern property and its potential. Bovard said that he, John Hoover and Margaret Piper decided to go into business together as partners, though Mrs. Piper was to have no active participation. Bovard said he was to come to Arkansas to pump out the old Northwestern mine and to promote coal leases to be sent back for Hoover’s approval.

According to Spencer Bovard, Guy Green prepared the Bovard trust and John Hoover signed it in his presence in Guy Green’s office. Bovard said he later gave the original of the Bovard trust to Green and Green lost it. He said the land was put in his wife’s name because she put up part of the purchase price.

Bovard v. Bovard

Turning to the proof that convinces us the Bovard claim is without merit, perhaps the most dramatic segment of the record involves a trial between Spencer Bovard and his uncle, James Bovard, decided by the Supreme Court of Missouri in 1944. The facts of that case provide a revealing profile of Spencer Bovard, which seriously undermines his credibility and renders his entire claim suspect. From that record it is shown that Spencer Bovard set out on a carefully conceived plan, pursued over a considerable period of time, to defraud an infirm and nearly destitute uncle of his share of the John H. Bovard estate, valued in excess of $10,000.

James Bovard, who was elderly, virtually deaf and trusting of Spencer Bovard, signed several sheets of blank paper at Spencer Bovard’s request, on the latter’s representation that he was trying out some new paper in connection with a printing business. The papers were later filled in as a deed of trust, an assignment, a receipt for $4,000 and two promissory notes, each for $2,000. When James Bovard sued to set aside the fraudulent instruments Spencer Bovard’s explanation was that he had lent his uncle $4,000 as a down payment on a hotel James Bovard was purchasing. He claimed he later cancelled the debt when James Bovard transferred his interest in the John Bovard estate to him. James Bovard testified that he had never considered purchasing a hotel and never intended to sign any documents to Spencer Bovard. The trial court and the Missouri Supreme Court, noting that James Bovard had never earned more than $100 per month working at odd jobs, for W.P.A. and the like, termed Spencer Bovard’s testimony “preposterous,” “unbelievable,” and “fantastic.” With no dissenting view the Missouri Supreme Court upheld the voiding of the documents as fraudulent.

Testimony of Anthony Nugent, Jr.

But there is more recent proof of similar methods. Anthony Nugent, Jr., son of the attorney hired in 1963 by the Bovards, a former Assistant United States Attorney for Missouri and now a member of the Missouri Court of Appeals, testified that after his father’s death he investigated the case to determine whether his stepmother might have a salvageable interest in the property. He said that at a meeting with Spencer Bovard in 1975, Mr. Bovard specifically stated that he had forged the signature of Dorothy Bovard on the mineral deed and, therefore, Bovard argued, neither Mr. Anderson nor Mrs. Nugent had any interest in the property purportedly conveyed by the mineral deed, nor any contract upon which to base further representation of Mr. Bovard, since the contract would fail for lack of consideration. Whether Spencer Bovard actually forged the name of Dorothy Bovard to the mineral deed, or merely claimed to have done so, matters little. In either event the result is the same — a demonstrated disdain for the truth and a willingness to engage in calculated fraud. Nor can we find in the record where Mr. Bovard denies this damaging testimony, only that he did not recall making such a statement.

John H. Bovard Estate

Worthy of note is the proof that while Spencer Bovard was serving as a co-administrator of the estate of John H. Bovard, two of the heirs petitioned for his removal on grounds of unfitness, accusing him among other things of a failure to account for moneys collected by him but belonging to the estate. The petition had the endorsement of Spencer Bovard’s co-administrator. From what we can determine, these allegations were not decided on the merits, but it does Mr. Bovard no credit that three members of his family, two aunts and his own co-administrator, considered him unworthy of the trust reposed in a fiduciary.

Buick Title Certificate

We also find proof that after the death of John Hoover, Mr. Bovard retained a Buick automobile registered in the name of John A. Hoover, and when his widow took legal steps to recover it, in the course of those proceedings Mr. Bovard admitted signing John Hoover’s name to an application for title, transferring the ownership to Dorothy Bovard. This was done, he said, with John Hoover’s approval.

Testimony of Wilbur Stillwell

There is the testimony of Mr. Wilbur Stillwell of Kansas City, an intimate friend and business associate of Margaret Piper, and the executor of her estate. He testified that some years before Mrs. Piper’s death in 1979 she and Mr. Bovard discussed the land. Mr. Bovard, he said, approached Mrs. Piper with the intent of seeking her cooperation. Stillwell described it as, “An unpleasant thing.” He said, “She didn’t trust him. It seemed to her that he projected the image of an opportunist. A person who sought to impose himself on a situation for his own gain. She had very little regard for Mr. Bovard.”

Courtship of Lula May Hoover

Another insight concerning Mr. Bovard is found in the testimony of Mrs. Dopp and Mrs. Deleon, undenied by Spencer Bovard, that while courting Lula May, even proposing marriage, Spencer Bovard posed as single, when in fact he was married and the father of two children.

“Hoover Put Up Nothing”

Spencer Bovard claims he and Margaret Piper put up all the money for the purchase, that John Hoover put up nothing. We find that testimony utterly unsupported by the record and wholly incredible. All of the documentation and correspondence regarding the purchase involves John Hoover, there is no suggestion that Spencer Bovard or Dorothy Bovard are interested in the purchase. Of course, Margaret Piper’s name was also omitted, but that was at her direction. There is no intimation that Spencer Bovard, like Mrs. Piper, wanted his interest undisclosed. Moreover, there is considerable correspondence between John Hoover and S.B. Stevenson, Vice President of the First National Bank of Ft. Smith, concerning the purchase. In all of this correspondence there is no suggestion that Dorothy or Spencer Bovard are interested in the purchase. One of Mr. Stevenson’s letters notes the cash value of Hoover’s life insurance.

Mr. Bovard’s testimony is improbable from another angle — he suggests that the $ 11,000 mortgage for the balance of the purchase price was the extent of John Hoover’s contribution, but he also testified that the understanding was that John Hoover was to recover this amount before Bovard and Mrs. Piper would receive any return on their investment from coal and timber sales — an absurd arrangement. If this were so, Hoover, who had put up nothing, would recover the $11,000 out ¡of coal and timber sales before Piper and Bovard were to start receiving earnings.

Two Trust Instruments

Equally implausible is Mr. Bovard’s explanation for why there were two trust instruments. He said Mrs. Piper was not satisfied with the first, the Bovard trust, and wanted a second one prepared to set out her interest more specifically, so the Piper trust was prepared. That explanation makes little sense in that the second instrument gives her only a life interest, whereas the Bovard trust gives her an interest in fee. What this strongly suggests is that whoever prepared the Bovard trust did not know the specifics of Mrs. Piper’s participation in the venture. That rules out Guy Green, who, because he prepared the Piper trust, knew the extent of Mrs. Piper’s interest.

The Bovard Trust

Spencer Bovard claims that Guy Green prepared the Bovard trust. We find that unbelievable. In the first place, on May 12, 1948, Guy Green filed a claim against the estate of John Hoover for the balance due him for legal services as of the date of death. The claim, verified under oath, is carefully itemized as to work performed by Green between February, 1946 and April, 1947, which includes the date of the Bovard trust (November 6,1946). The claim specifically mentions the preparation of the Piper trust, and some three or four coal leases, including the lease to Abner Hobbs. It states that fourteen days were devoted to acquisition of the Northwestern stock and in preparing and approving various instruments in connection with the purchase. The total charge is $1,000, billed to Hoover alone, and shows $350 paid on account by Hoover on February 17, 1947. The statement makes no mention of the Bovard trust and we think it most unlikely that the same attorney would have prepared two repugnant instruments affecting the same property. The statement does mention conferences with Spencer Bovard, referred to as Mr. Hoover’s “agent and associate.” But if Bovard were an equal owner, as he claims, why would words have been used which relegated him to a lesser status, and why would the charges for legal services not have been addressed to both of them? We reject as well Mr. Bovard’s claim that he hired Guy Green in 1948 to protect his interest against the Hoover estate. It is enough simply to note that no claim was filed on Bovard’s behalf by Green or anyone else against the estate of John Hoover and it would not have been ethical for Green to have filed such a claim.

No Original of Bovard Trust

We note, too, the absence of the original of the Bovard trust, with no very plausible explanation for its disappearance — only that Bovard says he gave it to Guy Green and Green lost it. The upshot is we are left with a photocopy (see appendix) of the most inferior quality — a negative, white on black reproduction — which defeats any reliable scrutiny into the genuineness of the signature or of the document itself.

Bovard Never Claimed Ownership

Particularly persuasive is the testimony by the appellants and by Marvin and Orval Hobbs, that neither before nor after the death of John Hoover did Spencer Bovard ever mention, even remotely, owning a part of the land in Arkansas. It is inconceivable to us that he would not have done so. Even if not while John Hoover was alive, the probability that after Hoover’s death, Spencer Bovard, whose interest was dependent on an unrecorded declaration of trust subject to being defeated at any time by an innocent purchaser, would not have said something to John Hoover’s wife and daughter at a decent interval after the funeral, is unthinkable. Mrs. Deleon testified that it was not until November of 1949, nearly two years after the death of John Hoover, that she first learned of the Bovard trust, and then evidently by chance. Nor does Spencer Bovard deny this testimony.

Testimony of Marvin Hobbs

We are impressed by the testimony of Marvin Hobbs and Orval Hobbs, whose father, Abner Hobbs, mined coal on the Northwestern lands from 1936 to 1951. Mr. Hobbs had leased a coal mine from John Hoover. Marion Hobbs, an uncle, also leased a mine from Hoover. Marvin Hobbs testified that he had lived near the property all his life, had worked in the coal mines with his father, that his father never conducted any business negotiations concerning the coal lease with anyone other than John Hoover. He said he saw Spencer Bovard with John Hoover several times, that Hoover referred to Bovard as a friend that “just came down with him,” that Hoover never indicated that Bovard had any interest in the property. Hobbs said he never saw Bovard mine any coal, and, significantly, he never saw Bovard around the property after John Hoover died, nor heard Bovard ever claim any interest in the property. At the trial he said he had not seen Mr. Bovard from the time of Mr. Hoover’s death “until this morning.”

Testimony of Orval Hobbs

Orval Hobbs testified that he had lived near the property for thirty-five years, working in the mines with his father and brother. He said he made several trips to Kansas City with his father to talk to John Hoover about leasing the old Northwestern mine but Hoover wouldn’t lease the Northwestern, so they leased another nearby. He said Spencer Bovard never said he owned any interest in the property and was not present during the negotiating sessions, that they leased the land from John Hoover. He said John Hoover told him he and Spencer Bovard were going to pump water out of the old Northwestern mine and that was why Hoover did not want to lease the old Northwestern. He said they never got much water pumped out because of problems with the motors. He testified that Spencer Bovard never said anything about owning part of the property, before or after John Hoover’s death.

Bovard’s Attitude Toward Hoover

Marvin Hobbs described John Hoover as a “real nice guy.” Curiously, Spencer Bovard described John Hoover in similar terms. When asked by his own counsel about John Hoover, he said, “He was a real good man.” Whatever may be said of that, what seems remarkable to us is for Spencer Bovard to so characterize a man who, if Bovard’s version is true, had committed a base fraud against him, by conspiring to cheat him out of his interest in the Northwestern lands to the end that he had spent forty years trying to recover what was rightfully his. If true, it is inconceivable that he would refer to the perpetrator of that egregious wrong as “a real good man.”

Other weaknesses in the Bovard claim could be cited, but we have belabored the point enough. We are entirely convinced the Bovard trust is specious. We have searched this record for any evidence to document Spencer Bovard’s version of the facts. We find none. The only support for the Bovard trust is the uncorroborated account of Spencer Bovard and, for reasons already discussed, we are unwilling to rely on that without something more substantial than Mr. Bovard’s word. It is not that Mr. Bovard failed to keep records. He kept numerous records from the very time these matters were occurring — bank records, hotel bills, receipts for gas purchases, invoices for machinery and tools bought or rented for the mining operation. But we also find records of John Hoover indicating that he was paying these expenses and the most that can be said of Bovard’s records is that they point to some common venture involving the Northwestern mine, but fall considerably short of establishing an ownership in the land. In that regard we find nothing.

Bovard Proof

We have not overlooked the opinion testimony of a handwriting expert that the signature of John Hoover on the Bovard trust was consistent with other, admittedly genuine, signatures of John Hoover. However, the expert conceded readily that it was extremely difficult to determine the authenticity of a signature from a photocopy, as we have here. Beyond that, this signature may actually have been that of John Hoover, obtained by subterfuge. The record contains graphic proof that Spencer Bovard was fully capable of such tactics, even where the interests of a trusting uncle were concerned. Why would he hesitate to use similar ruses against a trusting friend? Bovard admittedly signed Hoover’s name to a car title application and does not deny forging Dorothy Bovard’s name to a mineral deed, why not the Bovard trust?

We have also examined the affidavits Bovard introduced of Guy Green and his notary public supporting, in some respects, Bovard’s position. But Guy Green, according to Bovard, died around 1950 and under the exceptional circumstances of this case we attach little credence to unverifiable affidavits, patently inadmissible for that matter, from persons long deceased, when the underlying instrument itself, the Bovard trust, is judged to be spurious.

Conclusion

We have no doubt that John Hoover and Spencer Bovard had some common plan for the Northwestern mine, and that Hoover may have originally intended to give Spencer Bovard an interest in the property, if for no other reason than because Spencer Bovard provided the opportunity. But that attitude changed for reasons Hoover never explained to either his wife or his daughter. Whether Hoover discovered something about Bovard not to his liking, or whether Bovard was unwilling to rely on John Hoover’s good intentions and demanded as his right that which was only his, if at all, by sufferance, we cannot say. We can say unreservedly that the evidence clearly preponderates against the chancellor’s finding, and accordingly, we reverse the decree.

The decree is reversed and the suit remanded for further proceedings consistent with this opinion.

Purtle, J., not participating.

       In 1975 Spencer Bovard obtained a quit claim deed from his son, Michael Bovard, and his wife and was appointed administrator for the estate of his daughter, Patricia Bovard, who disappeared in 1969 and was declared legally dead.

       The entire opinion (Bovard v. Bovard, 180 S.W.2d 592, 352 Mo. 961) was introduced without objection.

       Mr. Bovard testified that he met John Hoover first, and only met Lula May Hoover some five or six months later, but the decree below makes a specific finding that Bovard met Hoover through his friendship with Lula May, not vice versa.

         The decree attributes this lowered interest to a “misdeed” by John Hoover. We find no basis for that conclusion except conjecture. The Piper trust, which Mrs. Piper signed in June of 1947, provides in clear and repeated language that her interest is for life only. Some years later Mrs. Piper signed yet another document at the request of a coal lessee, confirming the fact that her interest was for life only. Granted, Mr. Stillwell testified that she may have thought originally her interest was absolute, but what may well have been simply a misconception cannot translate into a “misdeed” when the instrument creating the interest plainly states it is for life only and bears her signature.

       The Green affidavit is dated September 15, 1953.


source: Caselaw Access Project

author: Steele Hays, Justice. Darrell Hickman, Justice,

license: Public Domain

text:
    Marvin Henry YOUNG v. Linda Joyce YOUNG
    85-186
    701 S.W.2d 369
    Supreme Court of Arkansas
    Opinion delivered January 13, 1986

      Janice Williams Wheeler, for appellant.

      Wright & Chaney, P.A., by: Travis R. Berry, for appellee.
   Steele Hays, Justice.

The primary issue to be decided in this divorce suit is the proper disposition of military retirement pay under Ark. Stat. Ann. § 34-1214(A)(l). Jurisdiction rests on Rule 29(l)(c).

Appellant Marvin Young and appellee Linda Young were married in January 1963 and lived together as husband and wife until October, 1984. Marvin Young had been in the United States Air Force from January 1960 until his retirement in January, 1980. In October, 1984 Linda Young filed for divorce. Marvin Young did not contest Linda’s divorce suit in October 1984. He asked the court to divide the property in accordance with Arkansas law. The court granted the divorce and divided the property of the parties including Marvin Young’s military retirement pay, finding it marital property in accordance with our decision in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984). The court divided the military pension proportionately to the number of years of marriage that coincided with Marvin Young’s military service, the method approved in Marshall v. Marshall, 285 Ark. 426, 688 S.W.2d 279 (1985).

In Womack v. Womack, 16 Ark. App. 139 (1985), a case factually very similar to the one before us, the question of the disposition of a military pension was at issue. The Court of Appeals found that Day and its progeny had established that military retirement benefits constitute marital property and our prior holding on that subject in Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980), was effectively overruled in Day, supra, Marshall, supra, and Gentry v. Gentry, 282 Ark. 413, 668 S.W.2d 947 (1984). We find nothing in appellant’s argument to warrant a contrary finding.

The appellant raises two arguments aside from the military aspect of the pension, contending there was error in the court’s finding the pension was marital property. He first argues that because he entered the service prior to his marriage, under Ark. Stat. Ann. § 34-1214(B)(2), the pension represents only an increase in value of property acquired prior to the marriage and is not included in the definition of marital property. There is no merit to this argument.

If we were to adopt appellant’s argument it would be in conflict with our reasoning in Day. There we recognized the basis for a spouse’s right to retirement benefits was based on the fact that the employment compensation of one spouse was acquired through the mutual efforts of both parties and that inequity would result if we failed to recognize the growing significance pensions have played as part of the consideration for employment. In Marshall, we did recognize the separate nature of retirement benefits accrued prior to marriage, but we also reaffirmed our holding in Day that subsequent benefits accrued during marriage were marital property. Appellant has simply mischaracterized those benefits accrued during marriage as being only an increase in his separate property and chosen to ignore in his argument that those benefits were marital property, a result of mutual efforts of both parties as we have already held in Day.

Appellant also argues that this case is distinguishable from Day because the pension plan here is a noncontributory one. In Day we said:

Dr. Day has used part of the family’s money to buy the annuities he now seeks to exempt from their proper classification as marital property. Under the law, however, we must recognize that Mrs. Day also contributed to the acquisition of the annuities by service as a homemaker and by bearing the six children and bringing them up.

Appellant points out that unlike Day, no family funds were channeled into a retirement fund in this case.

This argument overlooks the fact that although the plan was noncontributory, the pension was in effect, part of the consideration of his employment contract with the military, a wage substitute. As it was consideration earned during the marriage, it constitutes marital property. Ark. Stat. Ann. § 34-1214(B). This is the majority view. See, Ohm v. Ohm, 49 Md.Ap. 392, 431 A.2d 1371 (1981); In Re Marriage of Hunt, 78 Ill.App.3d 653, 34 Ill.Dec. 55, 397 N.E.2d 511 (1979); Matter of Rogers v. Rogers, 45 Or.App. 885, 609 P.2d 877 (1980); Damiano v. Damiano, 94 App.Div.2d 132, 463 N.Y.S.2d 477 (1983). “Even where contributions have been made entirely by the employer, the courts have concluded that retirement benefits are a mode of employee compensation and as such are an earned property right of the marriage.” Rogers, supra.

As we concluded in Day, “What we do hold is simply that earnings or other property acquired by each spouse must be treated as marital property unless falling within one of the statutory exceptions, and neither one can deprive the other of any interest in such property by putting it temporarily beyond his or her own control, as by the purchase of annuities, participation in a retirement plan or other device for postponing full enjoyment of the property.”

As a final point, appellant contends the court below made an unequal division of the marital property. Ark. Stat. Ann. § 34-1214(A)(1) requires that all marital property shall be distributed equally unless the court finds such a distribution to be inequitable, taking into consideration certain enumerated factors. When the court does make an unequal division, it must state its reasons for doing so.

There was no statement by the court that an unequal division of marital property was being made, nor any statement pertaining to the manner of division other than a listing by the court of how the property should be divided. Appellant maintains this was an unequal division and that the court failed to state the basis for the unequal division.

The court is not required to state the division is an equal one, and there is nothing on the face of the order to indicate it is not an equal division. There is insufficient information in either the abstract or the record for us to determine the valuation of any of the property divided, and from the record no error is shown. The burden is upon the appellant to bring up a record sufficient to demonstrate that the trial court was in error. SD Leasing v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983); King v. Younts, 278 Ark. 91, 643 S.W.2d 542 (1982). Although we can’t presume that any portions of the record not designated support the trial court’s action, we also can’t reverse unless the record demonstrates apparent error. Sharum v. Dodson, 264 Ark. 57, 568 S.W.2d 503 (1978). Kimery v. Shockley, 226 Ark. 437, 290 S.W.2d 442 (1956). Appellant’s argument fails for want of a record.

Appellant makes one point within this last argument which warrants our attention. The court granted Linda Young a proportionate share of the military pension amounting to one half of 18/20ths. The record however does not support that and we assume a clerical error was made. Appellant entered the service in January 1960 and retired in January 1980. The Youngs were married in January, 1963 and separated in 1984. The order should be modified to grant appellee one-half of 17/20ths of the military benefits.

Affirmed as modified.

Purtle, J., not participating.

Hickman, J., dissents.

Darrell Hickman, Justice,

dissenting. I am of the view that Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980), should not be overruled, so I dissent. I have previously stated my objection to the majority’s change of position in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984).


author: David Newbern, Justice.

text:
    Leslie T. CARTER v. George E. and Bessie MATTHEWS
    85-192
    701 S.W.2d 374
    Supreme Court of Arkansas
    Opinion delivered January 13, 1986

      Gill, Skokos, Simpson, Buford & Graham, P.A., by: Theodore C. Skokos and Michael R. Rainwater, for appellant.

      Gibson & Ellis, by: Sam Gibson, for appellees.
   David Newbern, Justice.

This is a real estate sale case in which the chancellor granted rescission in favor of the appellant on the ground of mutual mistake but did not award the money damages she claimed. The damages she sought were for her expenses in constructing improvements which subsequently hqd to be removed from the land. The appellant claims it was error for the chancellor to have found she did not rely on misrepresentations made by the appellees through their real estate agent, and thus it was error to refuse her damages for fraud plus costs and an attorney fee. On cross-appeal, the appellees contend the only possible basis for the rescission was fraud, not mistake, and the chancellor erred in granting rescission once he had found there was no reliance by the appellant on any active or constructive misrepresentations of the appellees. We find the chancellor was correct on all counts, and thus we affirm on both appeal and cross-appeal.

1, Rescission

The chancellor found that conversations between the appellant and the appellees’ agent showed that both parties were under the mistaken impression that the low, flat portion of land in question was suitable for building permanent structures such as a barn, horse corral and fencing. In fact, however, the area where the appellant attempted to build a barn and corral and which she wanted to use as pasture for horses was subject to severe and frequent flooding. The chancellor held there was thus a mutual mistake of fact making rescission proper. While there was evidence the appellees had known of one instance of severe flooding on the land, the evidence did not show they knew it was prone to the frequent and extensive flooding which turned out to be the case.

Other matters not known to the parties were that the low portion of the land, about two-thirds of the total acreage, is in the 100 year floodplain and that a Pulaski County ordinance, No. 83-OR-11, requires a seller of land lying in the floodplain to inform the buyer of that fact no later than ten days before closing the transaction. The county planning ordinance also requires that no structures be built in the floodplain. If the chancellor’s decision had been to permit rescission because of the parties’ lack of knowledge of these items, we would have had before us the question whether the mistake was one of law rather than fact and thus perhaps irremediable. But see Glasgow v. Greenfield, 9 Ark. App. 224, 657 S.W.2d 578 (1983).

While the chancellor mentions these items, his basis for rescission was the mutual lack of knowledge about the extent of the flooding, and misunderstanding of the suitability of the property, as a matter of fact, for the buyer’s purposes which were known to both parties. We sustain his finding that there was a mutual mistake of fact. A mutual mistake of fact as to a material element of a contract is an appropriate basis for rescission. Troxell v. Sandusky, 247 Ark. 898, 448 S.W.2d 28 (1969); Blythe v. Coney, 228 Ark. 824, 310 S.W.2d 485 (1958). Thus we affirm on cross-appeal.

2. Damages for Fraud

The chancellor refused to allow the appellant any damages for the loss she sustained with respect to the improvements she had placed in the floodplain. He found the appellant had made an independent investigation of the propensity of the property to become flooded and had ascertained, erroneously, that the property was not in the floodplain. Thus, in spite of the legal duty on the part of the appellees to tell the appellant that the land was in the floodplain, and what might have been the resultant constructive fraud upon failure to inform her, he held that fraud may not be the basis of a damages award absent reliance on the misrepresentation. For the same reason the chancellor refused to base his decision on any alleged fraud resulting from the appellees’ failure to tell the appellant what they may have known about the land’s propensity to flood. He was correct. An essential element of an action for deceit is reliance by the plaintiff on the defendant’s misrepresentation. MFA Mutual Insurance Co. v. Keller, 274 Ark. 281, 623 S.W.2d 841 (1981). In view of the strong evidence, including her own testimony, that the appellant made her own investigation as to whether the land flooded, the extent to which a creek running through the land was in the floodplain and the feasibility of bridging the creek above the floodplain, we can hardly say the chancellor’s factual determination that the appellant did not rely on the failure of the appellees to give her information known to them or which they had a duty to disclose to her under the ordinance was clearly erroneous. Ark. R. Civ. P. 52(a).

We find nothing in the law of this jurisdiction requiring us to say that when the appellant chose to seek rescission rather than affirm the contract and sue for damages, either out of pocket or benefit of bargain, she waived any possible damages claim. See D. Dobbs, Remedies, § 9.4 (1974). The point here is that we find no reason to upset the chancellor’s conclusion that the appellant did not rely upon the appellees’ misrepresentation of the facts as to whether the land was subject to flooding or their failure to notify the appellant that the land was in the “legal” floodplain.

When rescission is based on mutual mistake rather than fraud, the recoveries of the parties are limited to their restitutionary interests. Restatement (Second) of Contracts § 370 (1979). As the appellant could show no benefit conferred on the appellees from her attempted improvements on the land, she was entitled to no recovery in excess of the return of the purchase price, which was awarded to her by the chancellor, as well as cancellation of her note and mortgage.

3. Costs and Attorney Fee

The appellant contends costs should have been awarded to her as the prevailing party. For this proposition she cites Ark. R. Civ. P. 54. Rule 54(d) says, in relevant part, costs are to be allowed to the prevailing party as a matter of course, “unless the court otherwise directs.” Here the court directed that each party bear his own costs. The appellant gives us no reason to hold the chancellor abused the discretion vested in him under the Rule, ¿xcept that the appellees were guilty of fraud.

The appellant’s argument on the attorney fee is that it can be awarded when there is a “recognized ground of equity.” Lewallen v. Bethune, 267 Ark. 976, 593 S.W.2d 64 (Ark. App. 1980). She then states that “fraud” is such a ground. As we are affirming the chancellor’s refusal to find fraud as the basis of rescission, we need not go into the question whether one may recover costs under Rule 54(d) or an attorney fee when fraud has been alleged successfully.

Affirmed.

Purtle, J., not participating.


author: David Newbern, Justice. Darrell Hickman, Justice,

text:
    Harold MINGS v. CITY OF FORT SMITH and ST. EDWARD MERCY MEDICAL CENTER
    85-159
    701 S.W.2d 705
    Supreme Court of Arkansas
    Opinion delivered January 13, 1986

      Hardin, Jesson & Dawson, by: Rex M. Terry, for appellant.

      Daily, West, Core, Coffman & Canfield, by: Wyman R. Wade, Jr., for appellee City of Fort Smith.

      Harper, Young, Smith & Maurras, by: S. Walton Maurras, for appellee St. Edward Mercy Medical Center.
   David Newbern, Justice.

The appellant, Dr. Harold Mings, objects to the use as a parking lot of part of a tract of land owned by the appellee St. Edward Mercy Medical Center. The tract is across the street from Dr. Mings’ home and directly adjacent to a vacant lot he owns. Dr. Mings has been denied declaratory and injunctive relief against the hospital as well as injunctive relief he sought against the appellee City of Fort Smith. The claim against the hospital is that the hospital agreed not to use the land for a parking lot and thus is estopped from doing so. The claim against the city is that it violated its procedural requirements in allowing the parking lot in connection with a conditional use granted on the tract in question. We agree with the chancellor’s finding that Dr. Mings’ proof of estoppel by an agreement by which the hospital promised not to have a parking lot on the land fell short. We also agree with the chancellor that the city’s conduct was in at least substantial compliance with its ordinances. Thus we affirm as to both appellees.

In 1970, Dr. Mings and others fought the rezoning sought and obtained by the hospital to build its facility on a large tract of land near Dr. Mings’ residence. In connection with appearances before the city planning commission, Dr. Mings and others agreed to withdraw their opposition to the hospital’s request that its tract be rezoned T-l (transitional) from R-2 (residential). In exchange for Dr. Mings and others dropping their opposition, the hospital agreed it would maintain a buffer zone between its facility and the property of Dr. Mings and others. The portion of the hospital’s land on which its facility was to be built would be rezoned T-l, but the remaining part of the land constituting the buffer zone would remain zoned R-2. R-2 zoning would permit residential dwellings and duplexes and the sort of parking lot for nine cars which has been developed on the buffer zone and which is the subject of this case.

In 1982, the hospital went back to the planning commission and received permission to construct a jogging and walking trail as a conditional use on the buffer zone. The hospital’s representative at that meeting pointed out explicitly that there would be no parking lot constructed in connection with the jogging trail.

In 1984, the parking lot was constructed on the buffer zone next to Dr. Mings’ vacant lot by boy scouts as part of a merit badge project. When objections were voiced by Dr. Mings and others, the hospital closed the lot. The hospital then sought permission from the planning commission to reopen the parking lot. The planning commission denied the request. No one appealed that decision to the Fort Smith Board of Directors, but it appeared on the board’s agenda. The city attorney advised the board to take no final action in the absence of a formal appeal, so the board voted to ask the planning commission to reconsider the matter. The planning commission again sent out notices and held a second plenary hearing and again denied the hospital’s request. The hospital did not appeal that decision, but one of the citizens, a Mr. Faulkner, who had supported the hospital’s earlier request to the, planning commission, lodged an appeal with the board of directors. The board of directors overruled the planning commission’s decision, thus permitting the hospital to use the parking lot. Dr. Mings brought the action now on appeal.

1. Estoppel by Agreement

Dr. Mings argues the hospital is estopped from operating the parking lot because of its agreement with him and the other property owners not to do so. The evidence of an agreement reached before the original hospital construction supports no conclusion stronger than that the buffer zone would remain R-2 and be developed with a “park like” atmosphere. There was nothing specifically said about a parking lot.

When the hospital applied for the conditional use permit to construct the jogging trail in 1982, its representative told the planning commission that no parking lot would be built in conjunction with the jogging trail. There is evidence that that representation was made as the result of an agreement between the hospital and Dr. Mings. It was only a part of the presentation showing the planning commission how the land was to be used. Dr. Mings cites no authority, and we know of none, to the effect that a statement made by a party seeking a conditional use of land before a planning commission is binding upon that party and enforceable by those who opposed his request to the commission.

Dr. Mings had the burden of showing the existence of the agreement on which his estoppel claim was based. Hanna v. Johnson, 233 Ark. 409, 344 S.W.2d 846 (1961). When estoppel is the basis of a claim, we have held “. . . that there must be certainty as to every intent, that the facts constituting it must not be taken by argument or inference, and that nothing can be supplied by intendment.” Ford Motor Credit Co. v. Exchange Bank, 251 Ark. 881, 476 S.W.2d 208 (1972). Nor will we set aside the chancellor’s factual determinations that there was no such agreement unless we find it to be clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a); Blevins v. Wagnon, 281 Ark. 272, 664 S.W.2d 198 (1984); Proctor v. Hammons, 277 Ark. 247, 640 S.W.2d 800 (1982). We make no such finding, and we hold the proof of estoppel was at best unclear.

2. Procedural Irregularity

Dr. Mings argues either of two procedural errors requires us to declare the parking lot aspect of the conditional use permit void. First, he contends it was improper for the city board to refer the matter back to the planning commission for reconsideration when no appeal had been filed. He contends the board exceeded its authority. The argument would have been stronger had the board reversed the planning commission rather than suggesting reconsideration. However, even in that event we would have been called upon to consider seriously our statement in Taylor v. City of Little Rock, 226 Ark. 384, 583 S.W.2d 72 (1979), to the effect that the role of a planning commission is merely to act as an advisor to the city board of directors. Here, we have the argument that the board had no authority to ask the planning commission to reconsider when there had been no appeal.

While we recognize that a city may not ignore the procedures it has set up for participation of citizens in municipal government, we have held that a city’s actions are not invalid when it has substantially complied with its prescribed procedures. Adams v. Sims, 238 Ark. 696, 385 S.W.2d 13 (1965).

Dr. Mings cites Potocki v. City of Fort Smith, 279 Ark. 19, 648 S.W.2d 462 (1983), for the proposition that the city must abide by its ordinances. In that case the city flagrantly ignored its own requirement that zoning petitions not be resubmitted until one year after denial. In contrast, we find no mandate in this case saying the board may not suggest reconsideration by the planning commission. In Potocki v. City of Fort Smith, supra, we noted that there was not even substantial compliance with the germane ordinance.

In Taggart & Taggart Seed Co. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983), we struck down a city’s attempt to bypass completely its planning commission in the face of its ordinance requiring that zoning matters be presented first to the planning commission and then to the board. There, again, was a flagrant abuse and no hint of substantial compliance.

The action of the city board was appropriate. We can hardly say it constituted an abuse of the sort in the cases cited by Dr. Mings.

The second alleged error is that after the planning commission rejected the hospital’s request a second time the appeal was brought before the board by one who was not an “interested party.” Subsection H of Article V of the City of Fort Smith’s zoning ordinance provides that an appeal of a zoning matter may be taken from the planning commission to the city board of directors by an “interested party.” Clearly, had the hospital appealed, it would have been an “interested party.” However, the appeal was made by Mr. Faulkner who owned property in the neighborhood some six blocks away and who had appeared before the planning commission and spoken in favor of allowing the parking lot to be used.

The issue of standing in matters of zoning appeals has been a troublesome one to say the least. It has stimulated controversy when it has arisen from appeals of decisions as to how land should be zoned. See Annot. 69 ALR 3d 805 (1976); Annot. 37 ALR 2d (1954); Annot. 168 ALR 13 (1947); Comment, Standing to Appeal Zoning Determinations: The “Aggrieved Person” Requirement, 64 Mich. L. Rev. 1070 (1966). See also M. Gitelman, The Role of Neighbors in Zoning Cases, 28 Ark. L. Rev. 221 (1974). It is perhaps even more complicated when the question is one of standing to contest the granting or denial of a conditional use.

While this case has been argued as if a conditional use were being sought to permit the parking lot, it appears to us that the hospital was requesting a modification of the conditional use it had obtained to construct the jogging trail. There is not complete agreement about whether issuance of a conditional use permit is a legislative or administrative or quasi-judicial function. See R. Wright, Zoning Law in Arkansas: A Comparative Analysis, 3 U.A.L.R. L.J. 421, 425 (1980). Cf. D. Newbern, Zoning Flexibility: Bored of Adjustment?, 30 Ark. L. Rev. 491, 495-498 (1977). As appeals from the planning commission go to the city’s legislative body, the board of directors, perhaps it should be considered a legislative matter. The majority tradition, however, has been to treat the conditional use request as invoking quasi-judicial powers of the planning commission and of the board. See D. Newbern, supra, at 494, n.9. When viewed as a quasi-judicial matter to be addressed by the planning commission and the city board of directors and when ultimately reviewed in a true judicial setting, such as a chancery court, the purpose and nature of zoning decisions can easily be forgotten.

Zoning is a public matter. While the rights and duties of landowners, neighbors, and the general public conferred and required by zoning laws must sometimes be interpreted and protected by the courts, we should recognize that basic land use planning is a legislative function in which we should interfere only when necessary.

Ark. Stat. Ann. § 19-2825(a) (Repl. 1980) provides in part:

The plan or plans of the municipality shall be prepared in order to promote, in accordance with present and future needs, the safety, morals, order, convenience, prosperity and general welfare of the citizens; and may provide, among other things, for efficiency and economy in the process of development, for the appropriate and best use of land, for convenience of traffic and circulation of people and goods, for safety from fire and other dangers, for adequate light and air in the use and occupancy of buildings, for healthful and convenient distribution of population, for good civic design and arrangement, for adequate public utilities and facilities, and for wise and efficient expenditure of funds.

That language should be kept in mind, and neither we nor the trial courts should succumb to the temptation to treat zoning matters as ordinary adversary proceedings in which members of the public have no protective interest. That temptation is indeed present. In the landmark case declaring the constitutionality of land use planning and zoning to achieve it, Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), the U. S. Supreme Court analogized to the common law of nuisance. It should be realized in our time, however, that we are not dealing with the typical adversary proceeding, and our role should be to defer whenever possible to the legislative function of the city board in zoning disputes. See M. Gitelman, Judicial Review of Zoning in Arkansas, 23 Ark. L. Rev. 22 (1969).

That same deference should be given with respect to the question of standing. Again, we should recognize we are not dealing with a typical adversary proceeding. See J. Ayer, The Primitive Law of Standing in Land Use Disputes: Some Notes from a Dark Continent, 55 Iowa L. Rev. 344 (1969). Mr. Faulkner lived in the neighborhood, used the jogging trail, and participated in the first planning commission hearing as a proponent of the parking lot. There was evidence that parking had become a problem because the public was being allowed unrestricted use of the jogging trail. While we need not address here the question whether any member of the public would have standing as an “interested party,” we can not conclude that Mr. Faulkner had no such standing in these circumstances.

Affirmed.

Hickman, J., dissents.

Purtle, J., not participating.

Darrell Hickman, Justice,

dissenting. In 1982 St. Edward Mercy Medical Center told the planning commission there would be no parking lot constructed. Nonetheless it was constructed. After it was closed voluntarily, the hospital went before the planning commission again asking permission to reopen the lot. Permission was denied and there was no appeal by the hospital or anyone else. Instead, by some manipulation of the system, an appeal was brought before the city council and the decision of the planning commission denying the hospital’s petition was reversed.

The hospital did not ask the city council to reverse the. decision of the planning commission and in my judgment it is estopped to open the lot. We do not have before us the question of a right of the public to enjoy the use of the land. We have a question of the right of a private landowner to the use of the land. The majority approves of the intervention by Mr. Faulkner and the city board of directors as though this was a matter of public interest. If the hospital wants to dedicate this land to the public, the public will have an interest in it. It has not done that and stands in the position of a private landowner that did not ask to use its land but is being told that it can. If we had a case of a landowner trying to use land in any way detrimental to the public interest, then the intervenor or the city board might have some standing to stop such a use. But how can we decide that the landowner may use, indeed order it to use, its land in a way it does not insist upon? In such a case no one may speak for the hospital except itself and since it has not spoken, the right insisted upon by others should be denied.

The corollary to Justice Holmes’ remark that “Men must turn square corners when they deal with the government” is that government should turn square corners when it deals with the people. Foote’s Dixie Dandy, Inc. v. McHenry, Adm’r, 270 Ark. 816, 607 S.W.2d 323 (1980). Harold Mings has every right to complain that the hospital and the City of Fort Smith have turned no square corners in this case.

I respectfully dissent.


text:
    Ken TAYLOR, Collector, and B. A. McINTOSH, Assessor v. Roy and Mary FINCH
    85-199
    701 S.W.2d 377
    Supreme Court of Arkansas
    Opinion delivered January 13, 1986

      Henry & Duckett, by: Richard L. Lawrence, for appellants.

      Roy Finch, for appellees.
   David Newbern, Justice.

This is a property tax case. The appellees purchased real property from a school district. Because it belonged to the school district, the property was exempt from ad valorem taxation at the time of the purchase. Ark. Const, art. 16, § 5(b). The appellants sought to assess and tax the property to the appellees from the date they purchased it. The appellees objected to assessment being made prior to the year following their purchase of the property because Ark. Stat. Ann. § 84-436 (Repl. 1980), in part, states:

All lands that shall have been purchased from owners the property of whom or which was by law exempt;. . . subsequent to January 1st of any year shall be subject to assessment and taxation for the year immediately following such purchase ....

The appellants claim the statute violates Ark. Const, art. 16, § 6, which says: “All laws exempting property from taxation other than as provided in this Constitution shall be void.” We agree with the chancellor that the statute requiring assessment and taxation at the beginning of the year following the purchase is an administrative directive which need not be construed as an exemption of property from taxation in violation of the constitution.

While we understand the appellants’ argument that the statute creates an exemption, we find it equally reasonable to construe the statute as one providing, as an administrative directive, a time for assessment and taxation of property rather than a declaration of immunity or exemption from taxation.

Every act of the Arkansas General Assembly carries a strong presumption of constitutionality. Pogue v. Cooper, 284 Ark. 105, 679 S.W.2d 207 (1984); Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983). If it is possible for us to construe a statute so as to meet the test of constitutionality, we will do so. Phillips v. Giddings, 278 Ark. 368, 646 S.W.2d 1 (1983); Heber Springs School District v. West Side School District, 269 Ark. 148, 599 S.W.2d 371 (1980); Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980).

Affirmed.

Purtle, J., not participating.


text:
    Billy Joe WALKER v. STATE of Arkansas
    CR 85-142
    701 S.W.2d 372
    Supreme Court of Arkansas
    Opinion delivered January 13, 1986

      Clark & Clark, by: Jim Clark, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This is an appeal from denial of relief sought by the appellant in the trial court pursuant to Ark. R. Crim. P. 37. The appellant contends that his trial counsel was ineffective because the lawyer failed to move for dismissal of the charge against him on the ground that he had not received a speedy trial. We agree that the motion should have been made, and thus the conviction must be reversed.

Our criminal procedure rule, Ark. R. Crim. P. 28.1 (c), provides that a defendant charged with a crime in circuit court and lawfully at liberty awaiting trial is

. . . entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within eighteen (18) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

Rule 28.2(a) says the time begins to run when the charge is filed. Rule 28.3(a) provides, in part, for exclusion of:

The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant and the period during which he is incompetent to stand trial, hearings on pretrial motions, interlocutory appeals, and trials of other charges against the defendant.

It is undisputed that the appellant was tried more than eighteen months after he was charged. His trial attorney did not move to dismiss the charges on that ground. Rule 28.1 (f) provides that failure to move for dismissal pursuant to Rule 28.1(c) constitutes waiver of the right to a speedy trial.

As the appellant was precluded by waiver from appealing the prima facie violation of the speedy trial rule, he sought relief from the trial court on the basis that his trial counsel had been ineffective. See Rule 37; Carrier v. State, 278 Ark. 542, 647 S.W.2d 449 (1983). The trial court refused to grant relief under Rule 37 because he found that the appellant had made a motion for an omnibus hearing pursuant to Rule 20 and had then waived the hearing fifty-five days after having made the motion. The court held the running of the eighteen-month period was tolled for those fifty-five days. Although the judge did not say so, he obviously was denying relief under Rule 37 on the premise that a motion for dismissal for failure to provide a speedy trial would have been denied, thus counsel’s failure to make the motion did not constitute ineffective assistance.

We would agree with the trial court if the motion for an omnibus hearing had caused a delay in the holding of the trial. In this case, however, no trial date was set until almost a year after the appellant waived the hearing. The hearing was waived on April 12, 1982. On March 21, 1983, the trial was set to be held July 7, 1983. The record contains no explanation of the delay which occurred between April 12, 1982, and July 7, 1983. The appellant clearly was not holding up the trial during that time.

The state cites People v. Chiofalo, 73 A.D.2d 673, 423 N.Y.S.2d 210 (1979), in which an “omnibus motion” made by the defendant caused the prosecutor to request and receive a continuance to permit trial beyond the New York statutory time limit. The court made it clear that the delay beyond the limit was directly caused by the defendant’s motion.

Also cited by the state is State v. Gowe, 13 Ohio App. 3d 358, 469 N.E.2d 909 (1983). There the defendant asked for a pretrial hearing on a misdemeanor traffic offense charge. The pretrial hearing was set for some five days before the thirty-day speedy trial time limit ran. The defendant’s attorney failed to attend the hearing, and the court then rescheduled the trial on a date eleven days after the limit. The appellate court said that in these circumstances, where a defendant who was required to be tried in thirty days asked for two court hearings, it was not unreasonable to allow extra time. The case does not say whether the Ohio law required dismissal in the event the time limit is exceeded or permitted any “reasonable” delay.

We appreciate the Attorney General’s candor in citing, for comparative purposes, Rodman v. County Court, 694 P.2d 871 (Colo. App. 1984). The issue on appeal was again whether a motion for a pretrial conference was a basis for excluding time from the speedy trial calculation. The case is much like the one before us now, as the trial court did not have to postpone any set trial date. The Colorado Court of Appeals said:

Here . . . there is nothing in the record to indicate that Rodman’s timely request for the pretrial conference necessitated a delay or postponement of the trial date. Also, there is nothing in the record to indicate that Rodman had rejected a proposed trial date within the statutory period . . . that he or his attorney requested a continuance . . . nor that the court set the trial beyond the six month statutory limit to accommodate the defense attorney’s schedule.
What is evident is that in requesting a pretrial conference Rodman was merely seeking to invoke the power of the trial court to enter orders which would govern the future course of the proceedings. The fact that a disposition of the case might result from such conference, while perhaps hoped for, is only one of the possible results to be achieved. Here, there is no indication that Rodman had any understanding or knowledge that such request might result in a postponement of his trial, nor, in our view, should he believe that a request for a pretrial conference, as a matter of course, would constitute a waiver of his speedy trial right. [Citations omitted.]

The state also cites three Arkansas cases for the proposition that when the defendant’s motion has made the trial impossible for a time, that time should be excluded from the speedy trial calculation. Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982); Divanovich v. State, 273 Ark. 117, 617 S.W.2d 345 (1981); and Foxworth v. State, 263 Ark. 549, 566 S.W.2d 151 (1978). In each of those cases, the court had set a timely trial date which had to be delayed because the defendant’s motion made it impossible to hold the trial on the date planned. The distinction of those cases from the one before us is obvious. Here no trial date was delayed because of the defendant’s motion.

We note also that the court did not make a written order or docket entry showing a number of excluded days as Rule 28.3 (i) requires. The state argues the court fulfilled that requirement when he denied the Rule 37 petition. Our view is that there was no failure to meet this requirement because there were no excludable days.

We are not holding that in order for time to be excluded from the speedy trial period a trial must be postponed from a set date. We can imagine situations in which delays caused by the defendant could preclude setting the trial during the time within which he is required to be tried. In such an instance we could find, in the words of Rule 28.3(a), a “period of delay resulting from other proceedings concerning the defendant.”

Once the defendant has moved for dismissal and has shown that the trial was being or to be held after the speedy trial period expired, the prosecutor has the burden of showing the delay beyond the speedy trial period was the result of the defendant’s conduct. Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982); State v. Lewis, 268 Ark. 359, 596 S.W.2d 697 (1980). That burden should have been placed on the prosecution in this case. Had the dismissal motion been made, it would have been error not to have granted it. We thus hold the failure to make the dismissal motion was ineffective assistance of counsel, the defendant suffered prejudice from it, and we have no alternative but to reverse the conviction and dismiss the case. Clark v. State, 274 Ark. 87, 622 S.W.2d 171 (1981).

Reversed and dismissed.

Purtle, J., not participating.


author: Per Curiam.

text:
    Cliff JACKSON, Individually and as Representative of Affected Class of Arkansas Taxpayers and Ratepayers v. Honorable Lee A. MUNSON
    85-288
    701 S.W.2d 378
    Supreme Court of Arkansas
    Opinion delivered January 13, 1986

      Cliff Jackson, for appellant.

      Mitchell, Williams, Selig, Jackson & Tucker, by: Jerry D. Jackson, for AP&L.

      Wright, Lindsey & Jennings, by: N.M. Norton, Jr., and Charles L. Schlumberger, for Arkansas Electric Energy Consumers and Reynolds Metals Co.
   Per Curiam.

The petitioner was the plaintiff in a suit filed against Arkansas Power and Light Company (AP&L) and others in the chancery court. That suit alleged illegality of a settlement, entered into among the defendants, having to do with AP&L’s liability for a portion of expenses of building the Grand Gulf power generator. In response to a motion to dismiss the suit, the chancellor entered an order on October 15,1985, recognizing the exclusive jurisdiction of the Arkansas Public Service Commission (A.P.S.C.) in utility rate cases but refusing to dismiss the petitioner’s suit until the court was satisfied the petitioner had had an adequate opportunity to exhaust his remedies before the A.P.S.C.

The petitioner then demanded an immediate hearing before the chancellor claiming that AP&L would shut off electricity being used by the petitioner and those being represented by him when they refused to pay rates deemed by them to be illegal. The chancellor denied the motion for an immediate hearing. His order noted that the petitioner had been allowed to participate in pertinent hearings before the A.P.S.C. and that decisions made at those hearings were appealable to the Arkansas Court of Appeals pursuant to Ark. Stat. Ann. § 73-229.1(b) (Supp. 1985). The chancellor also noted that under A.P.S.C. regulations the petitioner and those represented by him were in no danger of having their electric power shut off until all hearings on the disputed rate were ended.

The petitioner filed a petition for a writ of mandamus in this court on November 20,1985, asking that we order the chancellor to proceed with the case. With the petition the petitioner filed a motion asking that we expedite the matter. We denied the writ on November 25, 1985, without comment. On December 2, 1985, the petitioner filed a motion asking that we reconsider our decision in light of his brief filed on November 25, 1985.

In both the mandamus petition and the brief the petitioner contends his cause is an “illegal exaction” suit permitted by Ark. Const, art. 16, § 13. He cites a number of cases in which we have held or said that an illegal exaction suit is one which may proceed despite the existence of other adequate remedies. No case is cited, however, in which this court has ordered a trial court to hear an illegal exaction suit in spite of the existence of other remedies.

Nothing in the petitioner’s brief convinces us we were incorrect. While it is true we have been liberal in permitting illegal exaction suits, see, e.g., Nelson v. Berry, 242 Ark. 273, 413 S.W.2d 46 (1967), we have held that an illegal exaction complaint was not proper where exclusive jurisdiction of the underlying matter was conferred on the circuit rather than the chancery court. Curry v. Dawson, 238 Ark. 310, 379 S.W.2d 287 (1967).

More to the point, mandamus is a discretionary remedy which will be granted only when the petitioner has shown “a clear and certain legal right to the relief sought and no other adequate remedy.” Girley v. Wood, 258 Ark. 408, 525 S.W.2d 454 (1975). See also, Naylor v. Goza, 232 Ark. 515, 338 S.W.2d 923 (1961), in which we cited with approval authority for the point that the “other adequate remedy” may be an appeal.

Reconsideration denied.

Purtle, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    IN THE MATTER OF THE ADOPTION OF Nicole Michelle GLOVER
    85-208
    702 S.W.2d 12
    Supreme Court of Arkansas
    Opinion delivered January 21, 1986

      B. Michael Easley, for appellant.
    No response.
   Jack Holt, Jr., Chief Justice.

Appellants Doug and Marge Glover petitioned to adopt their granddaughter, nine-year-old Nicole Glover, who had lived with them continuously for the preceding four and one-half years. The appellants’ son consented to his daughter’s adoption, but Mary Crenshaw, Nicole’s mother and the appellee, refused to grant her consent. Appellants attempted to dispense with the mother’s consent requirement through exceptions provided in Ark. Stat. Ann. § 56-207 (Supp. 1985). The probate court held that appellee’s consent was required and we affirm. Supreme Court jurisdiction is pursuant to Sup. Ct. R. 29(1)(c).

Generally, the natural parents must consent to an adoption for it to be valid. Ark. Stat. Ann. § 56-206 (Supp. 1985). The exceptions in Ark. Stat. Ann. § 56-207 provide:

(a) Consent to adoption is not required of:
(1)
(2) a parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree.

When proving that a natural parent’s consent is not required, the parties seeking to adopt “bear the heavy burden of proving by clear and convincing evidence facts which justify dispensing with the required consent of the natural parents” and the finding by the trial court that this burden has not been met will be upheld unless clearly erroneous. Loveless v. May, 278 Ark. 127, 644 S.W.2d 261 (1983).

Nicole’s parents were divorced four and one-half years before the petition and appellee was granted custody of the child. The father was ordered to pay $94.00 a month in support, which could be offset by any support paid by his parents, the appellants. Three days after the decree, however, appellee and appellants agreed that Nicole should stay with appellants. The appellants have provided all the support and care of Nicole since that time without contribution from appellee.

The probate court found that áppellee had sent letters and gifts to Nicole, some of which were returned unclaimed, and had made occasional visits, and had therefore not failed significantly to communicate with Nicole for more than one year. The court, in addition, found that the appellee had justifiable cause not to provide support because of her reliance on the divorce decree’s order that the father pay support and because the appellants were in effect put in the position of parents while they had custody of Nicole. The probate court opinion recognized that the original divorce complaint provided that the appellants should remain responsible for support and maintenance of Nicole while they had custody and that the appellants were given the derivative rights of their son.

The probate court relied on the case of In Re C.J.U., 660 P.2d 237 (Utah 1983), for the proposition that

parents are permanently “duty-bound” to support their children under [the Utah statute]. However, the extent of that duty is not without limitation, particularly in the context of a marriage which has been dissolved by divorce. Once the question of child support has been submitted to a court of competent jurisdiction and a ruling thereon has been obtained, the more general statutory duty of support becomes circumscribed by the more specific duty imposed by the court. A noncustodial parent whose obligation to provide support is being supervised by such a court order cannot be said to have any “duty” to provide beyond that imposed by the court.

In Loveless v. May, supra, we held that a mother, who moved to Florida and left her child with babysitters before custody was given to other relatives by court order, had not lost her right to withhold consent inasmuch as she had relied on the court order and the advice of the juvenile court judge in assuming that her support was not required while the relatives had custody.

Granted, a parent cannot simply turn a child’s care and support over to another and thereby be excused from the duty of providing support for the child, a duty which exists whether ordered by a court or not. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979). We cannot say, however, given the appellee’s reliance on the special circumstances in this case, that the probate court findings were clearly erroneous that appellants failed to prove by clear and convincing evidence that appellee had no justifiable cause for failing to personally provide support for her child.

The court gives careful protection to a natural parent’s rights. As announced in Woodson v. Lee, 221 Ark. 517, 254 S.W.2d 326 (1953), quoting In re Cordy, 169 Cal. 157, 146 P. 532 (1914),

“. . . the power of the court in adoption proceedings to deprive a parent of her child, being in derogation of her natural right to it, and being a special power conferred by the statute, such statute should be strictly construed; that ‘the law is solicitous toward maintaining the integrity of the natural relation of parent and child; and in adversary proceedings in adoption, where the absolute severance of that relation is sought, without the consent and against the protest of the parent, the inclination of the courts, as the law contemplates it should be, is in favor of maintaining the natural relation. . . . Every intendment should have been in favor of the claim of the mother under the evidence, and if the statute was open to construction and interpretation it should be construed in support of the right of the natural parent.’ ”

For these reasons, we affirm the trial court.

Purtle, J., not participating.


text:
    PROVIDENT LIFE & ACCIDENT INSURANCE CO. v. Clarence TORAN
    85-198
    702 S.W.2d 10
    Supreme Court of Arkansas
    Opinion delivered January 21, 1986

      Daily, West, Core, Coffman & Canfield, by: Wyman R. Wade, Jr., for appellant.

      Kincaid, Horne & Trumbo, for appellee.
   Jack Holt, Jr., Chief Justice.

The sole issue we must address in this appeal is whether the appellant, Provident Life & Accident Insurance Co., may enforce a provision in its group disability insurance policy which reduces the benefits to the appellee, Clarence Toran, by the amount of the Social Security payments he is entitled to receive because of his disability. Our jurisdiction is pursuant to Sup. Ct. R. 29 (1)(c), to interpret Ark. Stat. Ann. § 66-3709 as amended in 1979.

We recently answered the same question under the 1975 version of § 66-3709 in Milldrum v. Travelers Indemnity Co., 285 Ark. 376, 688 S.W.2d 271 (1985), where we held that Act 900 of 1975 did not prohibit the insertion of a clause reducing benefits for Social Security payments. Although the 1975 Act was at issue in Milldrum, we inadvertently quoted language contained in Act 806 of 1979, an amended version of the same Act. The difference between these two enactments does not affect the decision in Milldrum, nor does it change the end result of this case.

Arkansas Stat. Ann. § 66-3709 as amended in 1979 controls this case because the appellee became disabled in 1980.

Section 1 of Act 806 of 1979 (§ 66-3709) states:

“Section 1. No contract of group disability insurance as defined in Arkansas Statute 66-3701 including group contracts issued by Hospital and Medical Service Corporations as defined in Arkansas Statute 66-4908 hereafter sold, delivered or issued for delivery or offered for sale in this State shall contain any provision for the denial or reduction or [of] benefits because of the existence of other like insurance except to the extent that the aggregate benefits with respect to the covered medical expenses incurred under such policy or plan and all other like insurance with other insurers exceed all covered medical expenses incurred. The term “other like insurance” may include group or blanket disability insurance or group coverage provided by Hospital and Medical Service Corporations, government insurance plans, union welfare plans, employer or employee benefit organizations, or Workmen’s Compensation Insurance or no-fault automobile coverage provided for or required by any statute.”

The only change from the 1975 Act was the addition of “government insurance plans” in the list of prohibitions covered by the statute. In Milldrum, we said the “enumeration of various private insurance plans as constituting ‘other like insurance’ by implication excluded from the prohibition governmental social programs such as Social Security benefits.”

The trial judge’s interpretation of the statute, in light of our holding in Milldrum, is incorrect. Appellant should be allowed to reduce payment of benefits to appellee according to the policy’s provision and the judgment in favor of appellee, including the award of attorney’s fees, must be reversed.

Reversed.

Purtle, J., not participating.


author: Darrell Hickman, Justice.

text:
    Eddie W. BANKSTON, et ux. v. Charlene McKENZIE
    85-71
    702 S.W.2d 14
    Supreme Court of Arkansas
    Opinion delivered January 21, 1986

      Patton & Brown, and Eddie W. Bankston, Pro Se, for appellant.

      Warren H. Webster, for appellee.
   Darrell Hickman, Justice.

This case arises from ongoing litigation between the parties in both circuit and chancery court. This is the third time the parties have been before us on appeal. This appeal is from a foreclosure decree in chancery court and presents the question of whether Charlene McKenzie, the appel-lee, lost her right to foreclosure in chancery court when she voluntarily nonsuited the same claim in the circuit court proceeding.

Charlene McKenzie contracted with the Pulaski County Special School District to build a house; she subsequently leased the house to Eddie and June Bankston, the appellants, with an option to purchase. The Bankstons exercised the option in 1980 and bought the house for $86,000. McKenzie took a mortgage of $83,000. The Bankstons had numerous problems with the house. Then a fire in September of 1980 caused extensive damage. The Bankstons were paid $129,974.68 by their own insurance company for the loss in July, 1981. On June 10, 1982, they sued McKenzie, the school district and the district’s insurance carrier alleging numerous theories including negligence, breach of warranties and breach of contract. The first appeal merely questioned the circuit court’s ruling that the school district was totally immune from the claims. We held that the district was only immune from tort liability and could be liable for breach of contract. Bankston v. Pulaski County Special School Dist., 281 Ark. 476, 665 S.W.2d 859 (1984). On remand the circuit court granted summary judgment for all defendants, including McKenzie. We affirmed. Bankston v. McKenzie, 287 Ark. 350, 698 S.W.2d 799 (1985).

After the Bankstons filed their damage suit in circuit court, but before McKenzie was served with notice of that suit, she filed a foreclosure suit in chancery court on July 12,1982, alleging that the Bankstons were four months behind in their payments. The Bankstons filed a motion to dismiss in chancery alleging that McKenzie was obligated to make that claim as a compulsory counterclaim in their circuit court case. The chancellor orally overruled the motion and the foreclosure action remained in chancery court.

At some point, however, McKenzie did file a counterclaim in the circuit court case asking for foreclosure. The counterclaim remained in the case until the circuit court announced it was granting the defense motions for summary judgment. The only remaining issue in circuit court was the foreclosure claim, which also was still pending in chancery court. With the full knowledge of all parties that the foreclosure action was still pending in chancery, McKenzie asked for dismissal of the counterclaim. It was dismissed without prejudice.

The Bankstons now argue that that voluntary nonsuit is the death knell to McKenzie’s claim in chancery. They do not argue that McKenzie is not entitled to foreclosure on the merits. They simply contend that she is barred because she took a nonsuit on her counterclaim in circuit court. The rule on which they rely is ARCP Rule 13 (a):

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which, at the time of filing the pleading, the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on the claim, and the pleader is not stating any counterclaim under this Rule 13.

The reason for Rule 13 is to require parties to present all existing claims simultaneously to the court or be forever barred, thus preventing a multiplicity of suits arising from one set of circumstances. Martin v. Citizens Bank of Beebe, 283 Ark. 145, 671 S.W.2d 754 (1984); see Shrieves v. Yarbrough, 220 Ark. 256, 247 S.W.2d 193 (1952).

If the action had not been pending in chancery court and the chancellor had not already ruled that the cause would remain there, the issue might be troublesome. The chancellor refused to dismiss the foreclosure and when the nonsuit was granted in circuit court, all parties recognized that the claim remained in chancery. The claim was not dropped; it was being pursued elsewhere and all parties were aware of that. The Bankstons have raised no argument of prejudice. The outcome would have been the same in circuit court on the counterclaim. We affirm the chancellor’s holding that McKenzie’s voluntary nonsuit does not operate to bar her claim in chancery. The purpose of the mandatory counterclaim provision was satisfied in this case. The contested claim was made in both courts and ultimately decided in a court that had jurisdiction over the subject matter.

The Bankstons also argue that the chancellor erred in ruling that their defenses to the foreclosure — breach of contract, breach of warranties and negligence — were res judicata because of their resolution in the circuit court case. We agree with the chancellor. All of those claims against McKenzie had already been litigated and resolved in her favor. They could not be raised again. Olmstead v. Rosedale Building & Supply Co., 229 Ark. 61, 313 S.W.2d 235 (1938).

Affirmed.

Purtle, J., not participating.


text:
    Ona Lea BONHAM (Bishop) v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY and COMMUNITY CARE OF EUREKA SPRINGS, INC.
    85-216
    702 S.W.2d 16
    Supreme Court of Arkansas
    Opinion delivered January 21, 1986

      Hamilton, Mackey & Hicks, by: Charles R. Hicks, for appellant.

      Epley, Epley & Castleberry, Ltd., by: Lewis E. Epley, for appellee.
   Darrell Hickman, Justice.

The question is whether a hospital currently operated for profit is liable for tort claims arising against its non-profit predecessor. The trial court found no liability and we agree.

The appellant, Ona Lea Bonham, claims she was injured while a patient at the Eureka Springs Municipal Hospital in July, 1982. She sued the hospital’s insurance carrier, St. Paul Fire and Marine Insurance Company, in July, 1984. St. Paul moved for summary judgment because the policy was cancelled in February, 1984. The trial judge granted the motion.

Bonham amended the complaint to include the Eureka Springs Municipal Hospital as a co-defendant. When Bonham learned that the hospital had been purchased by a for-profit corporation, Community Care of Eureka Springs, Inc., another amendment was made naming that corporation as a co-defendant in place of the municipal hospital. The corporation moved to dismiss the complaint. Based on undisputed facts, the trial judge ruled in the corporation’s favor reasoning that since the former hospital was immune from liability at law because it was a charitable institution, so was its successor.

On appeal Bonham contends that since the corporation purchased the assets of the hospital, it assumed its liabilities. There is nothing in the record to show that the corporation assumed any of the tort liability of the hospital. Furthermore, the municipal hospital was immune from this type of claim, so, there was no liability for the corporation to assume. As the trial court observed: “Liability cannot be created out of thin air. Since there was no liability on the part of the predecessor, there can be none in the successor.”

While St. Paul is listed as an appellee, there is no argument on appeal that this part of the judgment should be reviewed.

It is the responsibility of the appellant to demonstrate error, and none is demonstrated. Baldwin Company v. CECO Corporation, 280 Ark. 519, 659 S.W.2d 941 (1983).

Affirmed.

Purtle, J., not participating.


text:
    J. Sky TAPP v. Bonita FOWLER
    85-223
    702 S.W.2d 17
    Supreme Court of Arkansas
    Opinion delivered January 21, 1986

      Tapp Law Office, by: J. Sky Tapp, for appellant.

      Hobbs, Longinotti, Bosson & Naramore, by: Ronald G. Naramore, for appellee.
   Darrell Hickman, Justice.

This appeal is dismissed because there was no final judgment or order entered.

Bonita Fowler sued Sky Tapp, who at one time represented her, claiming that Tapp wrongfully withheld money from a property settlement in her divorce case. She asked for the $1,000 in dispute and punitive damages. Tapp filed a motion to dismiss and a motion for summary judgment. The trial judge denied the motions on March 26,1985. Tapp did not file an answer or other pleading. In June Fowler asked for a default judgment, and it was granted for the $ 1,000. The claim for punitive damages was to be determined at a later proceeding.

Rule 2 of the Arkansas Rules of Appellate Procedure provides that an appeal may be taken from a final judgment or decree. To be final, a judgment must dismiss the parties from court, discharge them from the action, or conclude their rights to the subject matter in controversy. Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326 (1982); McConnell v. Sadle, 248 Ark. 1182, 455 S.W.2d 880 (1970); Piercy v. Baldwin, 205 Ark. 413, 168 S.W.2d 1110 (1943).

In Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984), a recent case in which the trial court dismissed a claim for punitive damages but deferred the claim for compensatory damages, we said:

If this appeal were allowed and we decided the issue on punitive damages and subsequent errors occurred during the trial on the remaining issues, the case could be appealed a second time, resulting in two appeals where one would suffice. This case illustrates simply the reason for the rule that an order must be final to be appealable.

That is exactly the situation presented here.

Appeal dismissed.

Purtle, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Benjamin A. HOLMES v. STATE of Arkansas
    CR 85-150
    702 S.W.2d 18
    Supreme Court of Arkansas
    Opinion delivered January 21, 1986

      William R. Simpson, Jr., Public Defender, and Donald K. Campbell III, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen, by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

During the late evening and early morning of December 7 and 8,1984, the appellant committed two burglaries, an aggravated assault, a battery, a kidnapping, and a rape, before committing the burglary and the second degree battery which are on appeal in this case. The appellant contends the evidence in the two cases on appeal is insufficient to support the convictions. We find no merit in the argument and affirm both judgments of conviction.

In the early evening of December 7,1984, Terry Nolen and his wife, Kay, went shopping and then returned to their home in west Little Rock where they decorated their Christmas tree, wrapped presents, put their children to bed, and began watching the late movie on television. While in the den watching the movie, the Nolens dozed off. At this time, unknown to the Nolens, the appellant was beginning his rampage in the neighborhood. Sometime between 12:30 and 1:00 a.m., they were awakened by a noise. They looked up and saw a man standing in front of them. His blue jeans were unbuttoned at the waist, and the fly was partially unzipped. The intruder, appellant, never spoke but motioned for Terry Nolen to go into the kitchen. Nolen started toward the kitchen when appellant grabbed him by the right arm, turned him around, and hit him on the side of the face, and knocked his glasses off. Appellant hit him again, and Nolen started to fight back. Nolen tackled the appellant, and in so doing, Nolen broke his kneecap on the den floor. Appellant then ran out of the Nolen’s house and was captured a short distance away.

Appellant argues that the evidence is insufficient to sustain the conviction for second degree battery. The second degree battery statute, Ark. Stat. Ann. § 41-1602(1 )(a) (Supp. 1983), contains three elements: (1) a battery, (2) committed with the purpose of causing physical injury, and (3) causing serious physical injury. Appellant, in effect, argues that he only intended to cause physical injury, not serious physical injury, and therefore, the third element is missing. The argument is based on a misconstruction of the statute. The only specific intent required by the statute is the intent to cause physical injury. Unquestionably, twice striking Nolen on the side of the face with his fist was evidence of an intent to cause physical injury. The third element, causing serious physical injury, was supplied when the serious physical injury actually occurred.

In anticipation of the above holding, appellant argues that even if the only intent required was the intent to commit physical injury, and he was found to have that intent at the time he struck Nolen, that intent had ceased by the time that Nolen broke his kneecap. Thus, he argues, he did not have the requisite intent to cause physical injury at the moment the serious physical injury occurred. The argument is without factual support. Viewing the evidence most favorably to the appellee, as we must do, the blows to Nolen and the breaking of the kneecap were a part of one continuous occurrence. There was evidence to indicate that the prerequisite intent was still present.

In addition, the appellant argues that the evidence was insufficient to sustain the conviction for burglary. The elements of the crime of burglary are: (1) the entering or remaining unlawfully in an occupiable structure of another person, (2) with the purpose of committing therein an offense punishable by imprisonment. Ark. Stat. Ann. § 41-2002(1) (Repl. 1977). Appellant does not dispute that the evidence was sufficient on the first element, entry. Instead, he argues that the State did not prove the second element, intent to commit an offense punishable by imprisonment. The short answer to the argument is that the State did prove by direct evidence that while inside the victim’s home the appellant did, in fact, intentionally commit an offense punishable by imprisonment, second degree battery.

Affirmed.

Purtle, J., not participating.