author: Bradley D. Jesson, Chief Justice.

text:
    Johnnie MANN v. Jessie ORRELL, d/b/a the Centerfold Club, Centerfold Entertainment Club, Inc., and Paul Maummar
    95-680
    912 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered December 11, 1995

      Gary M. Lax, for appellant.

      Hurts Law Office, by: Q. Byrum Hurst, for appellee Jessie Orrell d/b/a the Centerfold Club.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Rick Runnells and Julia L. Busfield, for appellee Paul Maummar.
   Bradley D. Jesson, Chief Justice.

The appellant, Johnnie Mann, filed suit against Jessie Orrell, d/b/a The Centerfold Club, and Centerfold Entertainment Club, Inc. (hereafter “the Centerfold Club”) and Paul Maummar. The complaint was dismissed by the trial court. We affirm.

The facts as set out in Mann’s complaint and amended complaint reflect that on May 18, 1991, Mann was an officer with the Hot Springs Police Department. In the course of his duties, he was called to the Centerfold Club to quell a disturbance. When he arrived, he observed three individuals, who were allegedly involved in the disturbance, running to a pickup truck that was parked in the club’s parking lot. The truck was owned by Paul Maummar. (The pleadings do not indicate that Maummar was at the scene.) When the individuals attempted to flee in the truck, Mann pulled his vehicle into the parking lot to block their exit. Mann then got out of his vehicle and was struck by the pickup truck. He sustained injuries as a result.

On May 16, 1994, Mann filed suit in Garland County Circuit Court naming the Centerfold Club and Paul Maummar as defendants. The driver and occupants of the pickup truck were not named. Mann’s complaint and his subsequent amended complaint alleged that the club was an establishment which allowed patrons to bring liquor onto the premises. It was further alleged that the three individuals who attempted to flee the scene were under age 21 and that the club had allowed them to consume intoxicating beverages to such an extent that they became unruly and dangerous. In particular, Mann claimed that the club was negligent in facilitating the consumption of alcohol by minors, in failing to screen for underage patrons, in failing to remove the minors once they became unruly, in creating an environment conducive to violence and in failing to maintain the premises in a reasonably safe condition. Finally, Mann claimed that the club’s manner of doing business constituted willful and wanton conduct.

The allegations against Paul Maummar were contained in one paragraph, which read as follows:

The Defendant, Paul Maummar, was negligent in as much as he was the owner of the aforesaid vehicle and he failed to use ordinary care by permitting one or more of the three (3) previously named individuals to be in possession and drive his car when he knew or reasonably should have known that they would become intoxicated and that they would otherwise operate his vehicle in a reckless manner.

The appellees responded to Mann’s amended complaint with motions to dismiss, pursuant to ARCP Rule 12(b)(6). The Centerfold Club argued that Mann was attempting to impose “dram shop” liability, which is not recognized in Arkansas. Maummar argued that Mann had failed to state facts upon which relief could be granted. The trial judge granted both motions to dismiss. Both dismissals were without prejudice. Mann elected to bring this appeal rather than to plead further.

When we review an order granting a motion to dismiss, we treat the allegations in the pleading as true and view those allegations in a light most favorable to the appellant. Perrodin v. Rooker, 322 Ark. 117, 908 S.W.2d 85 (1995). We have reviewed the trial court’s order with this standard in mind, and hold that the dismissal of the complaint was proper.

Mann recognizes that this court has declined to impose liability on a tavern owner for injury to a patron or third person when the injury results from the consumption of alcohol. First American Bank of North Little Rock v. Associated Hosts, Inc., 292 Ark. 445, 730 S.W.2d 496 (1987); Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965). This is true even in the case of illegal consumption of alcohol by a minor. Yancey v. The Beverage House of Little Rock, 291 Ark. 217, 723 S.W.2d 826 (1987); Milligan v. County Line Liquor, Inc., 289 Ark. 129, 709 S.W.2d 409 (1986). However, in his brief, Mann attempts to distinguish this line of cases as follows:

The Complaint specifically alleges that the Centerfold Club failed to use ordinary care to maintain its premises in a reasonably safe condition by allowing minors to consume alcoholic beverages illegally on the premises to such an extent that they became drunk and unruly. As alleged in the Complaint, this failure was the proximate cause of Appellant’s injury. The [other liquor liability cases] concern instances where patrons left the premises of the tavern or liquor store owner and injured the third party off the premises. Appellant submits that the distinction is valid. . . .

Mann admits that his cause of action against the Centerfold Club is grounded on the fact that minors were allowed to consume alcoholic beverages on the premises. However, he would have us change our long-standing rule simply because of the site where the injury occurred. This is not a valid argument. In Carr v. Turner, supra, alcoholic beverages were also illegally consumed on the premises, but the injury to the third person occurred on a public street. It would be illogical for us to refuse to impose liability in Carr, where illegal, on-site consumption of intoxicants purportedly led to injury away from the premises, yet impose it here where illegal, on-site consumption of intoxicants purportedly led to injury on the parking lot of the premises.

To further support his argument, Mann cites Industrial Park Businessmen’s Club v. Buck, 252 Ark. 513, 479 S.W.2d 842 (1972). In that case, Buck was injured when another patron of the club shot him. Buck had made a nuisance of himself to the patrons and management of the bar. A patron of the bar, who had turned his pistol over to the bartender, was allowed by Barg, the club’s manager of sorts, to retrieve the pistol for the purpose of dealing with Buck’s obnoxious behavior. The case also reflects that, when the injury occurred, the club had been emptied of personnel, including bartenders and waitresses, leaving only Barg, who was in an intoxicated state. We upheld a verdict in favor of Buck and noted that a tavern keeper has a duty to use reasonable care to protect guests or patrons from reasonably forseeable injury, mistreatment or annoyance at the hands of other patrons. We further stated that negligence in such a situation might consist of failure to take appropriate action to eject persons of undesirable character from the premises, knowingly permitting irresponsible, vicious or drunken persons to be in and about the premises, or failure to maintain order and sobriety in the establishment.

Although both the Buck case and the case at bar concern a dangerous, drunken and disorderly situation, there is no evidence that liability in Buck was premised on the consumption of alcohol. By contrast, the very heart of Mann’s case is the allegation that the Centerfold Club facilitated the consumption of alcohol by underage persons. As we have said many times, we will not impose liability on a tavern owner for injuries resulting from the wrongdoer’s intoxication.

We now turn to that portion of the complaint which attempts to state a cause of action against Paul Maummar for negligent entrustment. The elements of negligent entrustment are: 1) the entrustee is incompetent, inexperienced or reckless; 2) the entrustor knew or had reason to know of the entrustee’s propensities or condition; 3) an entrustment of chattel; 4) the entrustment created an appreciable risk of harm to the plaintiff and a relational duty on the part of the entrustor; and 5) harm proximately caused by the negligence of the entrustor. LeClaire v. Commercial Siding & Maintenance Co.. 308 Ark. 580. 826 S.W.2d 247 (1992).

There is nothing in Mann’s complaint to indicate that the entrustment created an appreciable risk of harm to Mann and a relational duty on the part of Maummar. A pleading is deficient if it fails to set forth facts pertaining to an essential element of the cause of action. Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993). Additionally, Arkansas is a state that requires fact pleading. A pleading which sets forth mere conclusions is not sufficient under our Rules of Civil Procedure. Perrodin v. Rooker, supra. Mann’s complaint attempts to follow the elements of a negligent entrustment cause of action, but sets forth virtually no facts which correspond to those elements. We agree with the trial court’s decision to dismiss the complaint against Maummar.

Mann’s complaint was dismissed without prejudice. He had the option to plead further. However, he chose to appeal. Since we have determined that the trial court’s dismissal was proper, Mann’s complaint is now dismissed with prejudice. See Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984).

Affirmed.

       We note also that the Buck case involves a tavern’s duty to its patrons. We have not been asked to decide whether Mann’s status as an on-duty police officer would have any effect on the Centerfold Club’s liability. See Waggoner v. Troutman Oil Co., Inc., 320 Ark. 56, 894 S.W.2d 913 (1995), where we recognized the professional rescuer doctrine, also known as the Firemen’s Rule. See also Pottebaum v. Hinds, 347 N.W.2d 642 (Iowa 1984).


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Danny COOK v. RECOVERY CORPORATION and City of Osceola
    95-746
    911 S.W.2d 581
    Supreme Court of Arkansas
    Opinion delivered December 11, 1995

      W. Hunter Williams, Jr., for appellant.

      J. Chris Bradley, for appellee.
   David Newbern, Justice.

This is a workers’ compensation case decided by a tie vote of the Court of Appeals. Cook v. Recovery Corp., 50 Ark.App. 49, 900 S.W.2d 212 (1995). The appellant, Danny Cook, was injured while employed simultaneously by the appellees, City of Osceola and Recovery Corporation. He claimed benefits from each employer. The Workers’ Compensation Commission held Mr. Cook’s maximum permanent total disability benefits to be 66 2/3% of the average combined wages of his two employers. Given the statutory benefits cap at the time of the injury, the benefits were limited to $226.11 per week. Had the Commission not combined the wages but considered them separately, the benefits would have been $153.28 from the City and $146.03 from Recovery Corporation. Neither award would have exceeded the cap, so Mr. Cook would have received $299.31. The issue is the meaning in these circumstances of “average weekly wage,” as that term is used in Ark. Code Ann. § 11-9-518 (1987). We agree with the prevailing Court of Appeals opinion which affirmed the Commission’s ruling.

Mr. Cook supervised city incinerator employees. Recovery Corporation hired him to supervise its employees who worked at the incinerator disposing of medical waste in accordance with a contact with the City. For an eight-hour shift Mr. Cook was paid by )oth the City and Recovery Corporation, with one paycheck from he City and a separate paycheck from Recovery Corporation.

The injury occurred when Mr. Cook inhaled formaldeyde fumes. The parties agree that at the time he was injured, Mr. look was a “joint employee” of the City and Recovery Corpoition. A definition of “joint employment” can be found in IB arson’s Workmen’s Compensation Law, § 48.41 at 8-553 (1995):

Joint employment occurs when a single employee, under contract with two employers, and under simultaneous control of both, simultaneously performs services for both employers, and when the service for each employer is the same as, or closely related to, that for the other.

If an employee is engaged in “joint employment,” meaning performing for and under the control of two employers at the same time, the liability for workers’ compensation benefits is joint. Dillaha Fruit Co. v. LaTourrette, 262 Ark. 434, 557 S.W.2d 397 (1977). See also Ridgeway Pulpwood v. Baker, 1 Ark.App. 214, 646 S.W.2d 711 (1983).

Section 11-9-518(a)(1) provides: “Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of accident. . . .”

Section 11-9-518 has been interpreted by the Court of Appeals in the context of multiple employers of an injured employee, but not in a case like the one now before us. In two cases, the claimant was an employee of two employers, but the work was separable. Hart’s Exxon Service Station v. Prater, 268 Ark. 961, 597 S.W.2d 130 (Ark.App. 1980); Curtis v. Ermert Funeral Home, 4 Ark. App. 274, 630 S.W.2d 57 (1982). In each of those cases it was held that the employer for whom the employee was providing services at the time of the accident was responsible but that the second employer was not. The decisions were based on statutory language, now codified in Ark. Code Ann. §§ 11-9-102(19) (Supp. 1993) and ll-9-518(a)(l) (1987), referring to the “average weekly wage” as that “earned by the employee under the contract of hire in force at the time of the accident.” In Marianna School Dist. v. Vanderburg, 16 Ark.App. 271, 700 S.W.2d 381 (1985), Ms. Vanderburg was employed by the Marianna School District as a bus driver. During hours between the morning and afternoon bus runs, she was employed by the District, under a separate contract, as a cafeteria worker. She sustained a compensable injury while driving a bus. Although there was no statute allowing it, the Court of Appeals held the wages of the two employments were to be combined to determine average weekly wage. The Curtis case was distinguished on the ground that the District paid a single workers’ compensation premium for the employee and there was no second employer who would be unfairly treated by having to compensate an employee for an injury not related to the contract with that employer.

No one has attempted or suggested sorting out precisely for whom Mr. Cook was performing his job when the accident occurred and thus limiting him to recovery from one employer only. By engaging in joint employment, Mr. Cook gets the benefit of joint liability of his two employers for workers’ compensation benefits, but he is unwilling to accept the burden imposed by the cap which is exceeded when the wages are combined.

The law in effect at the time of Mr. Cook’s injury required that the statutes be interpreted liberally to accomplish the remedial purpose of the Workers’ Compensation Act. Ark. Code Ann. § ll-9-704(c)(3) (1987). Nothing about limiting compensation to a maximum amount prescribed in the Act violates the remedial purpose of the Act. There was no requirement that a case be decided in favor of a claimant when the law was clearly stated in a manner not supportive of his or her claim. The fact that it may be paid by two employers inflicts no ambiguity upon the term “average weekly wage.”

Affirmed.


author: Tom Glaze, Justice.

text:
    Jamel JACKSON v. STATE of Arkansas
    CR 95-777
    911 S.W.2d 578
    Supreme Court of Arkansas
    Opinion delivered December 11, 1995

      Brent Baber Law Firm, by: Bill Luppen, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate for appellee.
   Tom Glaze, Justice.

Appellant Jamel Jackson brings this appeal in response to the Pulaski County Circuit Court’s denial of his former jeopardy-based motion to dismiss two counts of capital felony murder, a predicate felony charge of aggravated robbery, first- and second-degree battery charges, and a theft charge. The appeal asserts that the state prosecutor engaged <in misconduct with the intention of goading Jackson into moving for a mistrial. The court denied the motion, and we agree.

On December 17, 1993, Jamel Jackson and co-defendant Shawn Wilson arrived at a residence, No. 17 Dawn Court, in Little Rock, where Grandville Broadway, Alvin Frazier, James Fairchild and Clinton Lewis were present. Fairchild permitted Jackson and Wilson entry into the home. A series of events occurred inside which culminated in the shooting and killing of Broadway and Frazier, and the wounding of Lewis before Lewis escaped out the back door.

Jackson’s jury trial was set for September 26, 1994, but by agreement, his trial was reset for February 13, 1995, because of the unavailability of the medical examiner. The state twice more asked for a continuance, without objection, because of Fairchild’s and Lewis’s unavailability as witnesses.

By the time of the trial on April 5, 1995, Lewis had been located, but Fairchild’s whereabouts remained unknown. As a result of Fairchild’s absence, the prosecutor moved to nolle pros the second-degree battery and the theft charges, since the state had intended to use Fairchild’s testimony to prove these crimes, as well as the aggravated robbery charge which the state alleged led to Broadway’s and Frazier’s deaths. With Fairchild being unavailable and Lewis now having been located, the prosecutor moved to amend the information to name Lewis as a victim of the aggravated robbery charge. Defense counsel objected to the state’s request to name Lewis, and the trial court sustained his objection, stating the state’s request was a material change and untimely.

Because of Fairchild’s continued absence and the trial court’s ruling that the state could not utilize Lewis to prove its case, the prosecutor decided to prove its case against Jackson by using co-defendant Wilson as a witness. Wilson had previously entered a guilty plea to these crimes. At Jackson’s trial, the prosecutor, during opening statement, told the jury that Wilson would testify to matters surrounding the alleged crimes. Defense counsel moved for mistrial, stating Wilson claimed the state had never asked him to be a witness, Wilson had stated he would not be a witness, and in fact, if he was called as a witness, Wilson said he would take the Fifth Amendment. Because Wilson chose not to testify, the trial court determined Jackson had been prejudiced by the prosecutor’s opening statement and granted Jackson’s mistrial motion. The trial court then reset a new trial date for April 25, 1995.

Because Fairchild was still absent and Wilson refused to testify, the state again amended its information renewing its earlier strategy using Lewis’s testimony showing he was a victim of the aggravated robbery which was the predicate felony of the capital murders of Broadway and Frazier. The state also amended its information, restating the second-degree battery and theft charges it had nolle prossed at the April 5 trial.

Jackson objected to the state’s newly amended information and moved double jeopardy had attached. Jackson alleged that the state’s amended information exemplified the real reason why the state had made its prejudicial remarks during its opening statement at the April 5 trial. In sum, Jackson claims that, at the April 5 trial, the state mentioned it intended to use Wilson to prove its case when the state knew Wilson would not testify, and also knew it could not use Lewis as a witness, as well. Jackson further asserted that because Wilson and Lewis were not available, the state needed the court to declare a mistrial so as to avoid another continuance, which would have allowed Jackson to be released for jeopardy reasons under the nine-month speedy trial rule.

In Espinosa v. State, 317 Ark. 198, 876 S.W.2d 569 (1994), this court relied upon Oregon v. Kennedy, 465 U.S. 667 (1982), which stated the following:

Only where the governmental conduct in question is intended to “goad” the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.

Id. at 676; Espinosa v. State, 317 Ark. 198, 202, 876 S.W.2d 569, 571 (1994). The Supreme Court further held that the examination of the intent of the prosecutor calls for the court to make a finding of fact by inferring the existence or nonexistence of intent from objective facts and circumstances. Oregon, 465 U.S. at 675.

The central issue here is whether the record supports the trial court’s finding that the prosecutor acted in good faith when, during opening statement, he proclaimed that the co-defendant Wilson would offer testimony in proving its case against Jackson. We believe the objective facts and circumstances favor the state. At a hearing on this issue, the prosecutor explained that during an interview with Wilson on February 7, 1995, Wilson provided a factual recitation or statement inconsistent with his guilty plea. The prosecutor promptly alerted defense counsel concerning Wilson’s inconsistent statement and defense counsel, in turn, joined the prosecutor in further interviewing Wilson. Both the prosecutor and defense counsel quickly had a hearing before the trial court where the prosecutor voiced concern to the judge regarding whether by putting Wilson on the stand to testify consistently as to what he said in the interview, the prosecutor would be suborning perjury, causing a mistrial and double jeopardy to attach. Wilson testified that two months prior to the April 5 trial, the prosecutor had visited him in jail and asked Wilson if he were called as a witness, what would he testify to. Wilson further admitted that it was possible that it was discussed that he was listed as a witness in Jackson’s case. Wilson further related that never, during any conversation with the prosecutor, or anytime prior to the trial, had Wilson indicated to either counsel that he was going to claim his Fifth Amendment rights. The prosecutor asserted that his intent was to put Wilson on the stand for the limited purpose of showing Wilson was with Jackson when the crimes were committed and afterwards the two of them fled the state together. Along with this testimony, the prosecutor intended to utilize Wilson’s earlier guilty plea to show Wilson’s prior inconsistent statement, and his plea testimony describing the events surrounding the crimes.

The above facts alone support the prosecutor’s assertion that he in good faith believed that Wilson would testify as the prosecutor stated during his opening statement at the April 5 trial. In addition, we hold the record also supports the trial judge’s determination that the prosecutor had no intention of goading Jackson into moving for a mistrial.

In conclusion, Jackson invites this court to adopt two other state jurisdictions that have adopted a broader standard than that required under Oregon v. Kennedy. He suggests double jeopardy should attach when prosecutorial conduct is performed with indifference as to whether a mistrial would result. While we doubt the broader standard would benefit Jackson in the circumstances in this case, we reject Jackson’s invitation, especially since in our recent decision in Espinosa we adopted the standard in the plurality decision of Oregon v. Kennedy.

       The court responded to the prosecutor’s concern by stating that he did not think there was any subornation of perjury, but that Wilson’s statement would be governed by the rules of evidence as to prior inconsistent statements, and that the point is one to be taken up if and when it arises at trial.


author: Robert L. Brown, Justice.

text:
    ARKANSAS EMPLOYMENT SECURITY DEPARTMENT v. Barbara MELLON
    95-400
    910 S.W.2d 699
    Supreme Court of Arkansas
    Opinion delivered December 11, 1995

      Allan Pruitt, for appellant.

      Appellee, pro se.
   Robert L. Brown, Justice.

This matter relates to whether appellee Barbara Mellon was afforded an opportunity to be heard on why she did not appear at a telephone hearing before the Appeal Tribunal of the Employment Security Department. The Board of Review of the Employment Security Department dismissed Mellon’s request to be heard, after she failed to appear at a second telephone hearing. The Arkansas Court of Appeals in an opinion handed down on March 29, 1995, remanded the case to the Board of Review to examine whether Mellon was denied her statutory or due process rights. In a supplemental opinion handed down on June 28, 1995, the Court of Appeals denied rehearing. The Employment Security Department petitioned for a review of the opinions by the Court of Appeals, and this court granted review on July 10, 1995, pursuant to Supreme Court Rule 2-4. Upon review, we affirm the decision of the Board of Review and reverse the decision of the Court of Appeals.

Barbara Mellon sought unemployment insurance benefits after her employment terminated with Classic Cleaners in Berryville. The Employment Security Department found that Mellon had left her job voluntarily for undisclosed reasons. Because the Department determined that good cause was not shown for terminating the job, it denied Mellon’s request for benefits, and she appealed to the Appeal Tribunal. A telephone hearing was scheduled by the Appeal Tribunal for November 3, 1993, but Mellon did not call in prior to the hearing and provide a telephone number, as the notice required. Because of Mellon’s failure to appear at the telephone hearing, the Department’s denial of benefits was affirmed in a decision by the Tribunal on November 4, 1993. That decision stated that it would become final if not appealed within twenty days after the date of the mailing. The decision was mailed on November 4, 1993.

By letter post-marked December 16, 1993, Mellon requested a new hearing before the Appeal Tribunal. The text of her letter read:

I would like to set up a new hearing date. I never received my notice in the mail.
The unemployment office told me the date it was supposed to be.

The twenty-day period for filing an appeal had expired by the time Mellon wrote her letter. The Appeal Tribunal, nevertheless, forwarded her letter to the Board of Review, which scheduled a telephone hearing for January 18, 1994, to determine whether her failure to appeal in timely fashion was due to circumstances beyond her control.

Mellon received the notice of the second hearing and provided a telephone number where she could be reached on the date of the hearing. However, she failed to appear on that date. Mary Cameron, the appeals referee and staff attorney, commented that she called the number, and the person answering stated that she “did not know if [Mellon] would make it to her house today.” On January 27, 1994, the Board of Review dismissed Mellon’s appeal, stating:

Although duly notified of the date and time of the hearing, the claimant/appellant failed to respond as directed in the notice of telephone hearing and has not shown good cause for failure to respond.
The board of review considers it appropriate to dismiss the appeal, and the appeal tribunal decision ... remains in effect.

In a letter dated February 7, 1994, Mellon responded to the ruling:

Due to the weather on January 18, 1994,1 was unable to reply to the scheduled hearing I left message with the number.
I think the weather was good cause for not being able to reply to the hearing. You may reach me at 501-. . . .

The letter was stamped received by the Board of Review on February 16, 1994, and the Board forwarded the letter to the Court of Appeals for its consideration.

In an opinion dated March 29, 1995, the Court of Appeals remanded the case to the Board of Review to determine whether good cause was shown for Mellon’s failure to appear at the telephone hearing scheduled for January 18, 1994. Citing Ark. Code Ann. § 11-10-524 (Supp. 1993), the Court of Appeals based its opinion on the fact that Mellon’s letter was received within the twenty-day period for rehearing. The Department petitioned for rehearing of the court’s decision and contended that § 11-10-524 provides for no rehearing before the Board of Review within twenty days of its decision. The Court of Appeals denied the petition in its supplemental opinion dated June 28, 1995, and concluded that due process required that the Board of Review provide Mellon with another opportunity to be heard:

Thus, forgetting about Ark. Code Ann. § ll-10-524(c) and whether it applied to the board in this case, we think the request for new hearing, received by the board before its January 27 decision became final, allowed the board to grant the appellant a new hearing. Whether the new hearing should be granted is for the board to determine on remand. However, due process considerations stated in Paulino v. Daniels and its progeny require more than a simple finding that the appellant failed to appear at a hearing and therefore has not shown good cause for failing to file a timely appeal to the board. Moreover, in the instant case the two-prong requirement of opportunity to be heard and reasons for the untimely appeal are both present.

The Department contends that neither Arkansas statutes nor due process requirements demand that Mellon have a third opportunity to be heard. The Court of Appeals appeared to recognize in its supplemental opinion that § ll-10-524(c) provides the Appeal Tribunal may reopen a decision upon a showing of good cause. But that procedure does not apply to the next tier of appellate review before the Board of Review. At that stage, there is no statutory provision for reopening a decision, but only a provision for judicial review:

The decision [of the Board of Review] shall be final unless within twenty (20) days after the mailing of notice thereof to the party’s last known address, or, in the absence of the mailing, within twenty (20) days after the delivery of the notice, a proceeding for judicial review is initiated pursuant to § 11-10-529.

Ark. Code Ann. § 11-10-525 (1987). The letter received by the Board of Review on the twentieth day from its decision was a request for still another hearing based on allegations of good cause for missing the January 18, 1994 hearing. That is a remedy which the employment security statutes simply do not provide at the Board of Review level.

We turn then to the issue of whether due process considerations mandate another hearing for Mellon under Paulino v. Daniels, 269 Ark. 676, 599 S.W.2d 760 (Ark. App. 1980). In Paulino, the claimant was late in appealing a denial of benefits to the Board of Review. The Board found that the appeal was late and that the claimant’s failure was not caused by circumstances beyond her control. The Board, therefore, affirmed the denial of benefits, but the Court of Appeals reversed and held:

As appellant was given no opportunity before the Board of Review to attempt to explain the lateness of her appeal to that body, and in view of the fact that there is no substantial evidence in this record to support the finding of the board that the failure to file a timely appeal was not a result of circumstances beyond the appellant’s control, due process requires that claimant-appellant be afforded a hearing on her contentions.

In this case, unlike the Paulino facts, Mellon was given an opportunity by the Board of Review to explain why she did not appear at the telephone hearing before the Appeal Tribunal. But she failed to appear at this second telephone hearing, despite the fact that she undoubtedly knew about the hearing on January 18, 1994, and had provided die Board with a telephone number where she could be reached. Moreover, the Board of Review waited until January 27, 1994, to enter its decision affirming the denial of benefits. From the record, it does not appear that Mellon contacted the Board until twenty days after her failure to appear.

In short, the Board of Review did provide Mellon with an opportunity to explain her first failure to appear, and she did not take advantage of it. Because of that and after waiting nine days from the hearing date, the Board affirmed the Appeal Tribunal. Due process and Paulino v. Daniels, supra, require no more than this.

The decision of the Board of Review is affirmed, and the decisions of the Court of Appeals as reflected in the original opinion and the supplemental opinion are reversed.


author: Andree Layton Roaf, Justice.

text:
    Dennis Lamond THOMPSON v. Chester A. PERKINS
    95-575
    911 S.W.2d 582
    Supreme Court of Arkansas
    Opinion delivered December 11, 1995

      William J. Stanley and Rieves & Mayton, by: W. Terry Smith, Jr., for appellant.

      Daggett, Van Dover & Donovan, PLUS, by: Robert J. Donovan and J. Shane Baker, for appellee.
   Andree Layton Roaf, Justice.

This appeal arises out of a motor vehicle collision. Appellant Dennis Lamond Thompson filed suit against appellee Chester A. Perkins for personal injuries and property damage to his motorcycle. Appellee Perkins counterclaimed for property damage to his automobile. The jury returned a general verdict finding against Thompson on his complaint and against Perkins on his counterclaim. On appeal, Thompson asserts that the trial court erred (1) in allowing Thompson’s lay opinion as to which party had the “right-of-way” and (2) in allowing testimony concerning the health of Perkins’ wife, the treatment she was receiving at the time of the accident, and the fact that Perkins was employed. We affirm.

Facts

The collision occurred in April of 1989 at the intersection of an access road adjacent to the northbound lane of Interstate 55 in West Memphis, and the entrance ramp to Interstate 55. Appellant was riding his motorcycle in the southbound lane of the access road, and appellee was driving his automobile in the northbound lane of the access road. In order to enter Interstate 55, a northbound vehicle must cross at a diagonal the southbound lane of the access road.

According to appellant’s testimony, as he approached the intersection of the access road and the entrance ramp he observed that he had a yield sign, slowed down to approximately fifteen miles per hour, observed four or five vehicles approaching in the northbound lane, including appellees, noted that none had on a left turn signal and proceeded through the intersection. The collision occurred in the southbound lane. Appellee testified that he turned on his turn signal one or two car lengths before he left the northbound lane and that he did not see the motorcycle until it was within twenty or thirty feet of his vehicle, and he was already in the southbound lane.

a. Lay Opinion

Appellant argues the trial court erred in allowing appellee’s attorney to elicit his lay opinion as to which party had the “right of way.” During cross-examination, appellant stated that at the time he gave a deposition he felt that the cars he was meeting had the right-of-way. Appellant’s attorney objected to the question on the basis that A.R.E. Rule 701 provides that a lay witness’s opinion is not admissible if it is not helpful to a clear understanding of his testimony. The trial court overruled the appellant’s objection, first characterizing it as an admission against interest, and later stating that “this is lay testimony [and] [l]ay witnesses can give opinions.”

On appeal, appellant asserts that his opinion testimony did not satisfy the second requirement of A.R.E. Rule 701, that the testimony be helpful. Arkansas Rule of Evidence 701 provides:

Opinion testimony by lay witnesses. — If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

Appellant contends the “jury could have determined, absent appellant’s testimony, which party had the right-of-way based upon all facts presented in the case and the law as instructed by the Court” and the opinion testimony did not aid the jury in determining any fact in issue.

We have said that Rule 701 is not a rule against conclusions; it is a rule conditionally favoring them. Carton v. Missouri Pac. R.R., 303 Ark. 568, 798 S.W.2d 674 (1990). In Carton v. Missouri Pac. R.R., we said:

[E]ven if the witness does have the requisite personal knowledge, any inferences or opinions he expresses must thereafter pass the rational connection and “helpful” tests of Rule 701. “The rational connection test means only that the opinion or inference is one which a normal person would form on the basis of the observed facts. He may express the opinion or inference rather than the underlying observations if the expression would be ‘helpful to a clear understanding of his testimony or the determination of a fact in issue.’ ” If, however, an opinion without the underlying facts would be misleading, then an objection may be properly sustained. (Citations omitted.)

Further, testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. A.R.E. Rule 704; Davlin v. State, 320 Ark. 624, 899 S.W.2d 451 (1995).

Here, appellant’s testimony regarding the right-of-way was based on observed facts provided in his testimony — the location of his motorcycle, the oncoming vehicles in the northbound lane, and the yield sign. His opinion that appellee had the right-of-way is one which a normal person would form on the basis of the facts observed, and his opinion testimony did not mandate a legal conclusion. See Davlin v. State, supra; Carton v. Missouri Pac. R.R., supra. Finally, his opinion was helpful to the determination of a fact in issue, whether appellee was negligent. Thus, the trial court did not abuse its discretion in admitting the testimony. See Scroggins v. Southern Farmers’ Ass’n, 304 Ark. 426, 803 S.W.2d 515 (1991); see also Robinson v. Bump, 894 F.2d 758 (5th Cir. 1990)(admission in negligence action of lay opinion that defendant was “in total control” of vehicle not an abuse of discretion); Young v. Illinois Cent. Gulf R. Co., 618 F.2d 332 (5th Cir. 1980)(testimony from lay witnesses concerning their impression of condition of railroad crossing improperly excluded).

Appellant also submits that if the lay opinion “in some unknown way satisfied both parts of Rule 701,” then the relevance of the testimony was substantially outweighed by the unfair prejudice. This theory, however, was not presented to the trial court and we will not address a different argument raised for the first time on appeal. See Davis v. State, 317 Ark. 592, 879 S. W.2d 439 (1994).

Appellant finally asserts that the “error” in allowing the lay opinion testimony was compounded when the trial court permitted appellee to read into evidence appellant’s deposition testimony regarding the right-of-way. The appellant submits the deposition testimony had no relevance and was cumulative because all facts had been presented to the jury, including his earlier testimony regarding the right-of-way. He contends that, even if the deposition testimony was relevant, it should have been excluded pursuant to A.R.E. Rule 403. The trial court determined the evidence had already been presented, but no prejudice would result “in this being read further into evidence.” We have stated that we will not find prejudicial error where the evidence erroneously admitted was merely cumulative. Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995).

In addition, prior to appellee’s reading of appellant’s deposition, appellant’s counsel read into evidence a portion of the deposition in which appellant stated that because appellee failed to use a turn signal, he assumed appellee was not turning and he therefore had the right-of-way. Arkansas Rule of Civil Procedure 32(a)(4) provides that if only a part of a deposition is offered in evidence by a party, any party may introduce any other parts. See also Ouachita Mining & Exploration, Inc. v. Wigley, 318 Ark. 750, 778 S.W.2d 526 (1994). We cannot say the trial court abused its discretion in allowing the lay opinion testimony of the appellant.

b. Appellee’s Employment and Health of Spouse

Appellant argues the trial court erred in allowing testimony concerning the health of appellee’s spouse, treatment she was receiving at the time of the incident, and that appellee was employed. Prior to appellee taking the stand, the appellant moved to prohibit him from testifying that he was still working and that his wife had cancer. The appellant asserted the only claim being made by appellee was for property damage; therefore, the testimony regarding his wife’s health was not relevant under A.R.E. Rule 402. As to the testimony regarding Mr. Perkins’ employment status, the appellant also contended at trial that if the testimony was relevant it was prejudicial and should be excluded under A.R.E. Rule 403. The trial court concluded it would permit appellee to testify regarding why he was on the road, what type of treatment his wife was receiving, and his employment status.

Appellee testified that he was seventy-eight years old and he worked at Johnny Rye Grocery in Tyronza. He stated that at the time of the accident, his wife was in the vehicle with him, and that they were returning home from West Memphis, where his wife was being treated for cancer. He stated they had gone back several times for her checkups, and he was familiar with the intersection where the accident occurred. Finally, appellee testified his wife was not present at the trial because her doctor did not want her to attend.

On appeal, the appellant asserts the testimony in question “was in no way relevant to any issue involved in the underlying lawsuit.” Accordingly, the appellant submits the testimony should have been excluded pursuant to A.R.E. Rule 402. Arkansas Rule of Evidence 402 provides:

Relevant evidence generally admissible — Irrelevant evidence inadmissible. — All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible.

A trial court’s ruling on the relevancy of evidence will not be reversed absent an abuse of discretion. In Re Adoption of K.F.H. and K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993). Further, we will not reverse a trial court’s weighing of probative value against unfair prejudice under Rule 403 unless there has been a manifest abuse of discretion. Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994); see also Miller v. Nix, 315 Ark. 569, 868 S.W.2d 498 (1994).

Appellee asserted at trial that the fact that he was still working was relevant because he was seventy-eight years old and the jurors might question an elderly person’s driving skills. Indeed, whether appellee was negligent was the ultimate issue in the appellant’s complaint, and whether he could properly maintain and control his vehicle was relevant. Testimony that he was still employed was evidence which had a tendency to make the existence of a fact of consequence to the determination of the action more probable or less probable than it would have been without the evidence. A.R.E. Rule 401. We cannot say the trial court abused its discretion in concluding that the status of appellee’s employment was admissible under A.R.E. Rule 403.

The testimony regarding appellee’s familiarity with the intersection and his reason for being there was relevant to the issue of his negligence. At trial, the appellant argued the testimony was not relevant because appellee’s complaint was only for property damage; however, his complaint alleged that appellee’s negligence was the cause of the accident. Finally, we cannot say the trial court abused its discretion in permitting appellee to explain his wife’s absence as a witness. In testifying regarding his wife’s absence, Mr. Perkins was simply explaining why he was the only witness in support of his claim, and the credibility of a witness is always in issue. See A.R.E. Rule 608; Davlin v. State, 320 Ark. 624, 899 S.W.2d 451 (1995).

Affirmed.

Newbern, J., not participating.


text:
    Albert Lee KILPATRICK v. STATE of Arkansas
    CR 95-416
    912 S.W.2d 917
    Supreme Court of Arkansas
    Opinion delivered December 18, 1995

      John Joplin, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Bradley D. Jesson, Chief Justice.

The appellant was convicted of possession of cocaine with intent to deliver, Ark. Code Ann. § 5-64-401 (Repl. 1993), and of being a felon in possession of a firearm, Ark. Code Ann. § 5-73-103(a)(l) (Repl. 1993). As an habitual offender, he received sentences of forty-four years on the drug charge and twelve years on the firearms charge, the sentences to run concurrently. His arguments for reversal concern the sufficiency of the evidence to support his convictions, the denial of his motion to suppress, and four evidentiary rulings by the trial court. We find no error and affirm.

The appellant was the owner of an automobile detail shop in Vian, Oklahoma, which is about ten miles west of Sallisaw, Oklahoma. On December 21, 1993, he thoroughly cleaned and detailed a 1989 black Ford Ranger pickup belonging to a Mr. Sammy Henry. According to the appellant, he planned to drive the vehicle to Fort Smith, Arkansas to visit relatives and pick up his fiancee from work. She was not scheduled to leave work until late that evening, but the appellant left for Fort Smith sometime during the day. Along the way, he stopped in Sallisaw where he picked up his cousin, Eric Johnson.

Sometime after 9:30 that same evening, Detective Wayne Barnett of the Fort Smith Police Department was contacted by a confidential informant. According to the trial testimony, the informant told the detective that two black males from the Sallisaw, Oklahoma area, driving a black 1989 Ford Ranger pickup with Oklahoma tags, were selling crack cocaine. The informant stated further that the vehicle was parked in front of a residence near the intersection of 12th and G Streets in Fort Smith.

Shortly thereafter, Barnett contacted Detective Binyon with the Department’s narcotics unit. Binyon testified that the call came at approximately 9:55 p.m. Barnett relayed the information he had received from the informant. Within five minutes, Binyon and his partner, Detective Bruce, travelled in an undercover vehicle to an alley near the intersection of 12th and G Streets. From that vantage point, they conducted visual surveillance and observed a small, black Ford pickup with Oklahoma tags parked in front of a residence'at 12th and G Streets. According to Binyon, he had, in the past, executed a search warrant at the residence and had made several arrests at the intersection, an area well known for drug trafficking.

The detectives watched as three or four people came up to the truck, stayed for a short period, then left. Detective Bruce testified that two black males were continuously around the pickup, while other individuals came and went. About twenty minutes into the surveillance, the two men who had been standing by the truck got into it and pulled away. Bruce and Binyon called a patrol unit, and the truck was stopped before it had travelled more than a block and a half. The appellant was driving the truck and Eric Johnson was the passenger.

When Bruce and-Binyon arrived at the stopped vehicle, they asked the appellant and Johnson to exit the vehicle and told them of the reason for the stop. Bruce entered the truck on the driver’s side and immediately observed a plastic bag lying on the hump between the split bench seats. The bag contained a substance which the State Crime Lab later concluded was 1.868 grams of cocaine. Binyon, entering from the passenger side, found a .38 caliber revolver under the passenger seat. He also found, in the same area as the plastic bag, a pill container which held ten small chunks of a rock-like substance. The State Crime Lab later determined that the substance was .095 grams of cocaine base. Both detectives testified that the plastic bag and the pill container were in plain view between the driver and passenger seats.

After the contraband was found, the appellant and Eric Johnson were placed under arrest. They were tried together on the same charges and both found guilty.

For his first point of error, the appellant argues that the evidence was insufficient to support his conviction on either charge. In particular, he argues that the state did not prove that he was in possession of either the controlled substance or the firearm. He also argues that the state did not prove any intent to deliver the controlled substance.

Evidence to support a conviction, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or another. On appeal, we view the evidence in a light most favorable to the appellee and look only to that evidence which supports the verdict. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). When possession of contraband is an element of an offense, the state need not prove literal, physical possession. Constructive possession can be implied when the contraband is in the joint control of the accused and another person. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). However, joint occupancy of the vehicle, standing alone, is not sufficient to establish possession. There must be some other factor linking the accused to the contraband. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994).

Among the “linking” factors this court has considered in cases involving vehicles occupied by more than one person are: 1) whether the contraband is in plain view; 2) whether the contraband is found with the accused’s personal effects; 3) whether the contraband is found on the same side of the car seat as the accused was sitting or in near proximity to it; 4) whether the accused is the owner of the automobile, or exercises dominion and control over it; and 5) whether the accused acted suspiciously before or during the arrest. Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). In addition to the five factors set out in Plotts, we have also considered the improbability that anyone other than the occupants of the vehicle placed the contraband in the vehicle, and the improbable nature of the accused’s explanation for his journey. Mings v. State, supra.

In this case, the cocaine was in plain view. It was lying in proximity to the appellant in an area easily accessible by him. The handgun, while not in plain view, was also in an area accessible to the appellant. Detective Binyon testified that the truck cab was so small that anyone in the vehicle had access to anything inside. Additionally, the appellant exercised dominion and control over the vehicle. Although he did not own it, he had driven it from Vian, Oklahoma for his own personal purposes and had been the only one to drive it that day. Actual ownership is not required. Littlepage v. State, supra. Further, the appellant testified that he had thoroughly cleaned the vehicle prior to using it and would have noticed any contraband in it. Therefore, the jury could have dismissed the possibility that the drugs or the gun were in the truck when the appellant borrowed it. The jury might also have inferred that one who possesses cocaine with intent to deliver might also possess a handgun. Detective Binyon testified that it was common to find handguns in close proximity to drugs. This court has recognized that firearms are considered a tool of the narcotics dealer’s trade. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). Finally, the jury might have found the appellant’s explanation that he came to Fort Smith long before his fiancee was scheduled to leave work improbable. Taken together, these factors amount to substantial evidence to support the jury’s determination that the appellant was in possession of the cocaine and the firearm.

The appellant also claims there was insufficient evidence of intent to deliver the cocaine. In addition to the evidence already set out in this opinion which would support that inference by the jury, the amount of cocaine possessed — in excess of one gram —created a statutory presumption that it was possessed with the intent to deliver. See Ark. Code Ann. § 5-46-401(d) (Repl. 1993). This is sufficient evidence of the element of intent. Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986). The appellant attempts to argue that the presumption is unconstitutional because it shifts the burden of proof away from the state. He did not raise this argument below, so it cannot be raised on appeal. Williams v. State, 320 Ark. 211, 895 S.W.2d 913 (1995). In any event, the presumption is rebuttable and has withstood similar constitutional challenges in this court. Hooper v. State, 257 Ark. 103, 514 S.W.2d 394 (1974); Stoner v. State, 254 Ark. 1011,498 S.W.2d 634 (1973).

For his next point, the appellant argues that the search of his vehicle was the result of an illegal stop and detention. Rule 3.1 of the Arkansas Rules of Criminal Procedure provides, in pertinent part, as follows:

A law enforcement officer . . . may . . . stop and detain any person who he reasonably suspects is committing, has committed or is about to commit (1) a felony...if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.

In Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied, 459 U.S. 882 (1982), we said that the justification for an investigative stop depends upon whether, under the totality of the circumstances, the police have specific, particularized and articulable reasons indicating the person or vehicle may be involved in criminal activity. We also look to the definition of “reasonable suspicion” as set out in Ark. R. Crim. P. 2.1, which reads:

‘Reasonable suspicion’ means a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.

The thrust of the appellant’s argument is that the information provided by the confidential informant was so unreliable and so vague that it could not provide such reasonable suspicion. It is true that there was minimal evidence to show the reliability of the informant in this case. Detective Barnett testified that the informant had not provided him with any information leading to an arrest. However, Barnett had been able, in the past, to confirm the veracity of some of the information provided. Further, he was aware that the informant had worked with other detectives on cocaine cases. While we do not rule on whether such evidence would be sufficient to establish probable cause, see Rowland v. State, 262 Ark. 783, 561 S.W.2d 304 (1978), we hold that this evidence of reliability, combined with the accuracy of the informant’s information and the detective’s testimony regarding the area’s reputation for drug traffic, was enough to give the officers “specific, particularized and articulable reasons indicating the person or vehicle may be involved in criminal activity.” Hill v. State, supra.

Likewise, we hold that the informant’s description was not so vague as to remove any reasonable suspicion for the stop and detention. While we do not rule on whether such a description would be sufficient to form the basis for an arrest, see Branam v. State, 277 Ark. 204, 640 S.W.2d 445 (1982), we hold that the information provided was sufficiently detailed that, when combined with all other factors, it gave the officers a legal basis for the stop.

We now turn to the evidentiary issues. We initially note that the trial court is given great latitude on questions regarding admissibility of evidence and will not be overturned absent an abuse of discretion. Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995).

Before trial, appellant filed a motion in limine asking that the state not be allowed to mention that the narcotics officers had received a call saying there were two black males from the Sallisaw, Oklahoma area who were selling cocaine or had it in their possession. Appellant claimed the evidence would be highly prejudicial, apparently making an argument pursuant to A.R.E. Rule 403. The evidence had a high probative value. It served to explain the reason behind the officers’ surveillance of the appellant’s activity. In addition, the trial court gave a limiting instruction to the jury, informing them that they were not to look to the evidence for the truth of the matter asserted, but to show why the officers acted as they did. We have said that a limiting instruction may remove the inflammatory effect of evidence. Suggs v. State, 317 Ark. 541, 879 S.W.2d 428 (1994); Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992). In view of the probative nature of the evidence and the trial court’s limiting instruction, we cannot say that the court abused its discretion in admitting the evidence.

The second evidentiary issue concerns the state’s use of the appellant’s prior convictions for impeachment purposes. See A.R.E. Rule 609. The appellant’s credibility was impeached with a 1984 robbery conviction and a 1988 sexual abuse conviction. The appellant contends that, since the state had the robbery conviction at its disposal, use of the sexual abuse conviction was unnecessary and prejudicial. In the recent case of Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995), we held that the trial court has discretion in determining the admissibility of prior convictions for impeachment purposes. We also noted that Rule 609 places no limit on the number of convictions used. The appellant cites us to Jones v. State, 271 Ark. 379, 625 S.W.2d 471 (1981), in which we held it was error to admit evidence of a sexual abuse conviction. However, the Jones case involved an appellant charged with sexual abuse. Our ruling was predicated on the similar nature of the crime charged and the prior conviction.

The third evidentiary point concerns a letter written by the appellant’s co-defendant, Eric Johnson, to a federal magistrate judge. The letter read as follows:

Dear Miss Magistrate Judge Beverly Stites.
I Eric Johnson, hereby give the following statement. Mr. Albert Kilpatrick gave me a ride on the night of December 22nd [sic] year of 1993, and did not know of the contents which was placed in his vehicle.

During Johnson’s testimony, he said nothing which indicated that the appellant had any knowledge of the contraband in the vehicle. The trial judge refused to admit the letter because it was consistent with Johnson’s testimony. The judge’s ruling was correct. Extrinsic evidence of a prior inconsistent statement is allowed under certain circumstances. A.R.E. Rule 613(b). Since there was nothing in the letter which contradicted anything Johnson said on the witness stand, the letter would have no impeachment value and would strictly be cumulative. We find no abuse of discretion in the exclusion of this evidence.

For his final argument, the appellant claims that the trial court should have granted a mistrial when, during his cross examination, he was asked if he knew of any reason why someone would call the police and say there were two people from Sallisaw dealing crack out of a Ford Ranger pickup. Appellant asked for a mistrial, saying the jury had been told to consider that evidence for a specific purpose only and that the state’s question gave “too much credence” to the informant’s report.

A mistrial is a drastic remedy proper only when there is error beyond repair which cannot be corrected by any curative relief. A trial court’s denial of a mistrial will be overturned only for an abuse of discretion or manifest prejudice to the appellant. Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994). The admission of this evidence, even if it can be considered error, was not so drastic or prejudicial as to warrant a mistrial. The jury had already received two limiting instructions on the nature of this evidence. The information provided by the informant had already come into evidence through the state’s witnesses. Under these circumstances, we cannot say the appellant suffered such prejudice as to call for a mistrial.

Affirmed.

       Although the appellant testified that his fiancee’s shift ended at 10:45 p.m., there was also evidence that her usual hours were 3:45 p.m. until 12:00 midnight or 1:00 a.m.

       The appellant does not argue that the letter falls within the ambit of A.R.E. Rule 801(d)(l)(ii) which allows use of prior consistent statements in certain instances.


author: Robert H. Dudley, Justice.

text:
    Glen BATES v. STATE of Arkansas
    CR 95-806
    912 S.W.2d 417
    Supreme Court of Arkansas
    Opinion delivered December 18, 1995

      Witt Law Firm, P.C., for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Senior Appellate Advocate, for appellee.
   Robert H. Dudley, Justice.

Appellant was charged with first-degree murder. Before the trial commenced, appellant moved to quash the jury panel on the ground that the circuit judge was not in the presence of the circuit clerk when the judge selected the random numbers that were to be used by the clerk in selecting the names to comprise the master list of prospective jurors for the following calendar year. See Ark. Code Ann. § 16-32-103 (Repl. 1994). The proof at the hearing showed that the circuit judge mailed a list of random numbers to the circuit clerk, and the clerk then selected the names which matched the random numbers from the voter registration list. The trial court denied the motion to quash, and a jury subsequently found appellant guilty of manslaughter. Appellant appeals from the trial court’s ruling denying the motion to quash. The ruling was in error, but because the error was harmless, we affirm the judgment of conviction.

The statute governing the process is so clear that it needs no construction or interpretation, even though it contains a typographical error. It is a well-thought-out statute, has a solid foundation in public policy, and is to be followed by the circuit judges and clerks. It is as follows:

(a) During the month of November or December of each year, the prospective jurors for the following calendar year shall be selected from among the current list of registered voters of the applicable district or county in the following manner:
(1) The circuit judge, in the presence of the circuit clerk, shall select at random a number between one (1) and one hundred (100), inclusive, which shall be the starting number, and the circuit court shall then select the person whose name appears on the current voter registration list in that numerical position, counting sequentially from the first name on the list.
(2) The circuit clerk shall then select the one hundredth voter registrant appearing on the list after the starting number. As an example if the starting number is sixty-seven (67), which is the first selection, the second selection would be the one hundred sixty-seventh registered voter, the third selection would be the two hundred sixty-seventh registered voter, and so forth until the current registered voter list is exhausted.
(3) The circuit judge and the circuit clerk shall then repeat the random selection process until the number of jurors set out in the subsection have been selected.

Ark. Code Ann. § 16-32-103(a)(l)-(3) (Repl. 1994).

The trial court erred when it selected the random numbers outside the presence of the circuit clerk and by not being present when the selection was made, but even so, we do not reverse because the error was harmless. In this case, there is no hint that the circuit judge did anything other than randomly select the numbers, and there is no hint that the circuit clerk did anything other than correctly apply the random numbers to the voter registration list.

Appellant’s motion to quash is not abstracted, and we do not know the full content of the allegations in the motion. The record, as abstracted, does not reveal whether the jury panel that found appellant guilty was picked from a venire composed of the prospective jurors that were improperly placed on the master jury list. Moreover, the abstract does not reveal any information about the panel selected; it does not show the race, gender, age, or occupation of any of the jurors or whether there might be some ground for us to suspect bias. The record does not show that appellant exercised any of his peremptory challenges, and, certainly, it does not reflect that he exhausted his peremptory challenges and was forced to take a juror he did not want. See Shelton v. State, 254 Ark. 815, 496 S.W.2d 419 (1973). Accordingly, we hold that the error was harmless and affirm the judgment of conviction.

Affirmed.

       The word “court” is a typographical error for the word “clerk.” Page 1772 of vol. II, book 2 of the 1979 General Acts of Arkansas reads, “and the Circuit Clerk shall then select the person whose name appears. . . .”


text:
    CHEQNET SYSTEMS, INC. v. Susan MONTGOMERY
    95-779
    911 S.W.2d 956
    Supreme Court of Arkansas
    Opinion delivered December 18, 1995
    [Petition for rehearing denied January 29, 1996.]

      Cross & Mills, by: Junius Bracy Cross, Jr., for appellant.

      Kelly Law Firm, PLC, by: A.J. Kelly, for appellee.

       Jesson, C. J., not participating

   Robert H. Dudley, Justice.

This is an interlocutory appeal from the certification of a class. See Ark. R. App. P. 2(a)(9). We affirm the certification. The facts are that Susan Montgomery filed a class-action complaint in which she alleged that Cheqnet Systems, Inc., committed multiple violations of the Fair Debt Collection Practices Act. See 15 U.S.C. § 1692 (1994). Cheqnet filed a motion to dismiss in which it contended that Montgomery failed to meet the requirements for class certification pursuant to Ark. R. Civ. P. 23. Montgomery filed an amended class-action complaint, again alleging that Cheqnet committed multiple violations of the Fair Debt Collection Practices Act. Montgomery’s allegation that is pertinent to this interlocutory appeal is that Cheqnet violated 15 U.S.C. §§ 1692e(2)(A) and 1692f(l) by collecting $10 more than it was entitled to collect under Arkansas law for returned checks. Section 4-60-103 (Repl. 1991) of the Arkansas Code Annotated provides a maximum collection fee of $15.00 per returned check, and Montgomery’s complaint alleges that Cheqnet collected or attempted to collect a fee of $25.00 on each returned check. In her amended complaint, Montgomery alleges that she represents the class of debtors who had been, continued to be, and would be adversely affected by the actions and omissions of Cheqnet. Cheqnet filed an answer to the amended complaint and objected to the motion to certify the class. Cheqnet contended that Montgomery did not pay the alleged overcharge for her returned check; therefore, her claim was not typical of the proposed class.

At the hearing on certification, Montgomery limited the class-certification request to the issue involving overcharge for returned checks as a violation of the federal Fair Debt Collection Practices Act. She called an assistant attorney general as her first witness. Cheqnet objected to testimony by the assistant attorney general on the ground that the attorney general’s office had obtained Cheqnet’s records through a civil investigation demand, and the attorney general is prohibited from publicly disclosing those records. See Ark. Code Ann. § 4-88-111 (Repl. 1991). After an extended colloquy between counsel for both parties, the witness, and the trial judge, the court sustained Cheqnet’s objection. This first colloquy covers five pages in the transcript. After the trial court’s ruling, counsel, the witness, and the trial court again engaged in a lengthy colloquy, four pages of transcript this time, and the following exchange occurred:

THE WITNESS: Your Honor, as a result of those written complaints that were received, Ms. Mikeless issued a civil investigative demand, which is basically a pre-litigation discovery tool.
THE COURT: And found they were doing this across the board.
THE WITNESS: Yes, sir.
THE COURT: Okay. Sure.
THE WITNESS: And that there were roughly over 3,000 —
THE COURT: Yeah, I knew —
THE WITNESS: — consumers that had been overcharged.

Counsel did not specifically object to the statement and did not move to strike it from the record.

Montgomery testified generally as to the underlying facts of the case, her involvement in the case, and her qualifications as class representative. Cheqnet called its general manager who testified that Cheqnet was in the process of repaying the individuals who had been overcharged. The witness testified that the repayment was pursuant to an agreement between Cheqnet, the Attorney General, and the State Board of Collections. During closing arguments, Cheqnet’s attorney stated that appellant had already started to send notices and repay the individuals it had overcharged. The following then occurred:

THE COURT: You’re talking between, say, thirty and $50,000.00.
MR. CROSS: Probably at a minimum.
THE COURT: Just roughly guessing, like I say, if there’s three to 5,000 people and maybe more, you know, out there. I’m just concerned that your client has the resources to do that. I don’t know that he does. He may. I don’t know.
Well, in any event, —

At the close of the hearing the court took the matter under advisement.

On March 6, 1995, the trial court held another hearing and ruled that the class would be certified. A third hearing was held on April 4, 1995, to determine the particulars of the order certifying the class and to discuss notice provisions and discovery of potential class members. The trial court entered the order certifying the class on April 5, 1995. The order defined the class as “all of those persons from whom Cheqnet Systems, Inc., attempted to collect, or actually collected, a $25.00 service fee per returned check.”

Cheqnet first argues that the trial court erred in allowing the assistant attorney general to testify to the number of people Cheqnet had overcharged since the information came to the attorney general’s office as a result of a civil investigation demand. The argument contains a fallacious assumption because the trial court did not make a ruling when the evidence came in. The only ruling made by the trial court was to sustain Cheqnet’s objection to the admission of documents taken in the attorney general’s civil investigation. The testimony about the number of people involved came four transcript pages later, and it came in when the assistant attorney general volunteered the information without objection, and without a motion to strike. Rule 103 of the Arkansas Rules of Evidence provides that when evidence is admitted, as this evidence was, the record must reflect a “timely objection or motion to strike . . . stating the specific ground of objection” or else any question about its admission is waived. Ark. R. Evid. 103(a)(1); Mills v. State, 321 Ark. 621, 906 S.W.2d 674 (1995). The evidence came in without objection and without a motion to strike. Thus, the trial court committed no error, and except in circumstances not material to this case, we do not reverse a trial court absent some error. Stevens v. State, 319 Ark. 640, 893 S.W.2d 773 (1995). In addition, Cheqnet’s attorney admitted the same information to the trial court. A party cannot admit a fact to the trial court, and then on appeal contend that the case must be reversed because that fact was not proven. Vin son Elec. Supply, Inc. v. Poteete, 321 Ark. 516, 905 S.W.2d 831 (1995). Cheqnet next argues that the trial court erred in certifying the class in this action. This court reviews class certification under an abuse of discretion standard. Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995); see also Union Nat’l Bank v. Barnhart, 308 Ark. 190, 197, 823 S.W.2d 878, 881 (1992) (noting the “longstanding rule that the trial judge has broad discretion in matters of class certification”).

Rule 23 of the Arkansas Rules of Civil Procedure provides:

One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Ark. R. Civ. P. 23(a). Rule 23 was amended to its present version by per curiam order in 1990. In re Changes to the Arkansas Rules of Civil Procedure, 304 Ark. 733 (1990). However, many of the principles found in cases prior to the amendment still apply. Union Nat'l Bank v. Barnhart, 308 Ark. 190, 197, 823 S.W.2d 878, 881 (1992).

The numerosity requirement is met. We have held that 184 class members were enough to satisfy the numerosity requirement. See Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991). In the present case, the proposed class possibly consists of 3,000 persons. While the exact number of the proposed class may not have been proved, “[t]he exact size of the proposed class and the identity of the class members need not be established for the court to certify a class, and the numerosity requirement may be supported by common sense.” Brewer v. Friedman, 152 F.R.D. 142, 143 (N.D. Ill. 1993).

Rule 23(a) requires common questions of law or fact. Ark. R. Civ. P. 23(a)(2); International Union of Elec., Radio & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988). This requirement is met. Common questions of fact concern whether appellant charged $25 per dishonored check. Common questions of law concern the legality of appellant’s charging $25 per dishonored check and the applicability of the federal Fair Debt Collection Practices Act. These questions apply to the entire class of those individuals who were overcharged by appellant.

The third requirement under Ark. R. Civ. P. 23(a), the requirement of typicality, was fully addressed by this court in Summons v. Missouri Pacific Railroad, 306 Ark. 116, 813 S.W.2d 240 (1991). In that case, we quoted H. Newberg, Class Actions, § 3.13 (1985), as follows:

Typicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct. In other words, when such a relationship is shown, a plaintiff’s injury arises from or is directly related to a wrong to a class, and that wrong includes the wrong to the plaintiff. Thus, a plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of varying fact patterns which underlie individual claims.

Id. at 121, 813 S.W.2d at 243. The court in Summons further stated, “Although the Summonses’ allegations as to their injuries and damages are different from those they describe for other members of the class, their claims are typical in the sense that they arise from the alleged wrong to the class which includes the wrong allegedly done to them, and that is sufficient.” Id. The same can be said for the case at bar. Montgomery’s injuries and damages arise from the same wrong allegedly committed against the class — the collection or attempt to collect for dishonored checks in violation of Arkansas statutory law. The fact that the injuries and damages suffered as a result of the alleged wrongdoing may vary among class members does not make this action fail the typicality requirement, and the fact that Montgomery did not actually pay the overcharge does not keep her claim from being typical of the class since the class is defined as those persons from whom appellant collected or attempted to collect a $25 service fee per returned check. Cheqnet’s argument that Montgomery was not damaged involves a fact question that is common to all class members from whom appellant attempted unsuccessfully to collect $25.

Cheqnet argues that Montgomery cannot “fairly and adequately protect the interests of the class.” Ark. R. Civ. P. 23(a)(4). In Union National Bank v. Barnhart, 308 Ark. 190, 823 S.W.2d 878 (1992), we wrote that “the representative must simply ‘display some minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision making as to the conduct of the litigation.’” Id. at 198, 823 S.W.2d at 882 (citations omitted). At the hearing on the motion to certify, Montgomery testified that this case concerned a violation of the Fair Debt Collection Practices Act and that the violation was overcharging people by $10.00. She testified that she was interested in pursuing the action. She testified that although she relocated to Florida, she stayed in regular contact with her attorney and that the case could only be maintained as a class action because “on an individual basis, this case isn’t much,” but that as a class action it could make a difference. Appellee’s testimony demonstrates more than the minimum requirements required under Barnhart. See also Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991).

Finally, this action also meets the requirements under Ark. R. Civ. P. 23(b) that the common question of law or fact predominate over individual questions and the maintenance of a class action is the superior method of handling the adjudication of the controversy. The question of predominance of common questions and superiority are “very much related to the broad discretion conferred on a trial court faced with them.” Summons v. Missouri Pac. R.R., 306 Ark. 116, 123, 813 S.W.2d 240, 243 (1991).

In summary, the trial court did not abuse its discretion in finding that a class action is a superior method of handling this controversy.

Affirmed.

Jesson, C.J., not participating.