text:
    Hazel Kinchen HALL v. RENTAL MANAGEMENT, INC.
    95-871
    913 S.W.2d 293
    Supreme Court of Arkansas
    Opinion delivered January 22, 1996

      Dodds, Kidd, Ryan & Moore, by: Robert T. James, for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Mike Huckabay and Julia Busfield, for appellee.
   Bradley D. Jesson, Chief Justice.

This case concerns the duty of a landlord to protect its tenants from the criminal acts of third persons. The appellant, Hazel Kinchen Hall, and her son, seventeen-year-old Kendall Dolls, were tenants in the Jefferson Manor Apartments. The apartments were operated by the appellee, Rental Management, Inc. (RMI). On July 12, 1991, Kendall Dolls was shot and killed on the premises. The perpetrator, a man named Geno Davis, was the guest of another resident. Mrs. Hall filed suit in 1994 alleging that the negligence of RMI had proximately caused her son’s death. A motion for summary judgment was filed by RMI and was granted by the trial court. We find no error and affirm.

On the night of the shooting, Kendall Dolls left his apartment and went to an area of the complex where an activity for young people had been taking place. The record does not reflect exactly what took place, but it appears Kendall was shot without provocation by Geno Davis. In her complaint, Mrs. Hall alleged that RMI had failed to provide adequate security measures to ward off criminal attacks and in particular had used unqualified personnel as security.

After substantial discovery had taken place, RMI filed a motion for summary judgment on the basis that a landlord owes no duty to protect its tenants from the criminal acts of third persons. A copy of Mrs. Hall’s lease agreement was attached as an exhibit to the motion. The lease contained no provision in which RMI agreed to provide Mrs. Hall security against criminal activities. Mrs. Hall responded to the motion by acknowledging that, as a general rule, landlords have no duty to offer such protection to their tenants. However, she claimed, RMI voluntarily undertook' a duty to provide security and, having done so, was bound to use reasonable care. To show that RMI had assumed this duty, she attached the following exhibits:

1. The Good Neighbor Handbook. Paragraph 14 of the lease agreement stated that tenants would abide by the House Rules as set forth in the Handbook.
2. A portion of RMI’s Employee Procedures Manual. The manual contained sections entitled “Security” and “Security Patrol.”
3. Deposition testimony of Chuck Needs. Mr. Needs was a maintenance man at the complex.

According to Mrs. Hall, each of these exhibits contained evidence that RMI had assumed the duty to provide its tenants with protection against criminal activity. The following are the relevant portions of the exhibits.

The Good Neighbor Handbook

Under a section titled “SECURITY,” the following paragraph appears:

A feeling of security is important to all residents. If you notice any unusual or suspicious activity, please notify the Resident Manager immediately. All residents are asked to cooperate when seeing abuse to anyone or to the property. Do not open the door to anyone unless you know who it is. If you are in doubt, call the management if necessary.

The following provisions are included in a section titled “HOUSE RULES”:

The management cannot be responsible for your children in the event of parent negligence. We can only see that the grounds and apartment are a safe place to live; but without a parent, it becomes very unsafe and threatens the life of your child.
Because of management’s concern for safety and your peace of mind, children under school age cannot be allowed in public areas such as laundry, office or recreation room, unless accompanied by a parent or guardian.
You have the same privacy as if your apartment were a separate home. Each tenant has that same right of privacy and peaceful enjoyment. Since the apartments are close together, you must think of the other people who live next door to you. To give your neighbors the privacy that they deserve, we ask that your children do not play outside beyond the time of 9:00 p.m. each evening.

Employee Procedures Manual

The manual as a whole deals with many aspects of apartment living such as lock-outs, visitors, keys, pets, and fire safety. However, three pages of the manual address the subject of security. Under the heading “Security,” RMI resident managers are directed to be concerned about the safety factor in apartment living, and told that effective security requires cooperation between management and residents. General security advice is given such as having children play in designated areas; making sure there are no excessive crowds or noise; vehicular control, meaning no large trucks or trailers in parking places, no motorcycles in breezeways, and no disabled vehicles; reminding residents to control their guests; being alert for suspicious activities; and getting acquainted with local law enforcement personnel. The following provisions also appear:

On-site management will have to recommend to the Property Manager if security officers are needed. It is most important that ALL on-site personnel be security and safety conscious at all times.
Security patrol may be performed by employees to check the property in the evenings. A regular check will ward off problems and inform the management of any unusual activity.
RMI employees must:
Conduct themselves, at all times, in a helpful, friendly, yet business-like manner with all residents and guests. This will give the residents a sense of well-being. A business and no-nonsense approach will let them know that we take our jobs seriously and that the welfare of the residents is very important to all employees.
Any person on the property that is not a resident or guest is considered trespassing. If there is any cause for concern, call the police. In any event, ask the person if we can help or give directions. A person must have legitimate business to be on the property. If the person has no business on the property, they must be asked politely to leave. Again, if there is cause for concern, CALL THE POLICE. Obtain the person’s name. If possible, obtain the license number of the car. Keep this information on record for future reference.

Under the heading “Security Patrol,” the following appears:

Crime is a major worry for residents and there is no substitute for having the property patrolled by well-trained people, whether by our own employees or professional security personnel. Strict management of tenants behavior and the behavior of guests make it clear from the start that the property is a no-nonsense place. Adhering to strict policy will not be attractive to those who just want to ‘hang out.’ ‘Hanging out’ will not be tolerated. This is the beginning of major problems.
Activities that are disturbing and impose on the rights of others will not be tolerated, not only from residents but from others. Activity of this type must never be allowed to get started. Our reputation will serve as some type of security measure.
Residents may blame the management for failing to provide security or for providing it negligently. Legal liability for negligence may perhaps be reduced by hiring an outside Security Patrol.
If there is a problem with security, the resident must contact the RMI office. We will be happy to go to any length to correct the problem.
It is our goal to at all times provide'a safe place for our residents and family. We feel our residents have the right to be safe and live in a peaceful environment.

Deposition of Chuck Needs

On the date of the shooting, the resident manager was on vacation. Mr. Needs, the maintenance man, was left to respond to maintenance calls, check the lights, and help with the youth activity center. The complex employed no security guards. Either Mr. Needs or the manager would patrol the premises, especially if residents called and said they heard a noise, for example. In such a case, Mr. Needs would look around the area. If he saw some evidence, such as footprints, that a person had been outside an apartment, he would make a record of the incident. The steps the complex might take as part of security were checking the lighting, responding to tenant calls and making the rounds to check playgrounds, porches, and driveways. If, for example, a tenant saw a person with a gun, the tenant might call him and he would call the police.

After a hearing, the trial judge granted the motion for summary judgment. He relied on our recent decision of Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994), and found that the activities of RMI in making some efforts toward safety did not create a duty to provide security against the criminal acts of others. Mrs. Hall appeals from that ruling.

This is the type of issue which is properly decided by summary judgment. It involves the question of whether a duty exists. This is always a question of law, not to be decided by a trier of fact. First Commercial Trust Co. v. Lorcin Eng’g, 321 Ark. 210, 900 S.W.2d 202 (1995).

Our most recent case concerning the duty of a landlord in these circumstances is Bartley v. Sweetser, supra. In that case, two men entered a tenant’s apartment and raped her. The tenant sued her landlord claiming that the landlord provided her with a windowless door with a simple push-button lock, failed to provide adequate security and adequate lighting of the common areas, and failed to warn her that the complex was prone to criminal activity. The trial court granted summary judgment in favor of the landlord and we affirmed. In our affirmance, we recognized the general rule that a landlord does not owe a duty to protect the tenant from criminal acts. However, the appellant alleges that the activities undertaken by RMI remove this case from the rubric of Bartley. She argues that RMI voluntarily undertook to provide security, thereby becoming liable for any negligence in doing so.

We have implied that a landlord who assumes a duty not required of him is removed from the general rule. See Glasgow v. Century Property Fund XIX, 299 Ark. 221, 772 S.W.2d 312 (1989) and Kilbury v. McConnell, 246 Ark. 528, 438 S.W.2d 692 (1969) where we said that there was no evidence of “an agreement or assumption of duty that removes the landlord from the general rule.” (Emphasis added.) Indeed, this principle is widely recognized. R. Schoshinski American Law of Landlord & Tenant, § 4:15 (Supp. 1995); Walls v. Oxford Management Co., 137 N.H. 653, 633 A.2d 103 (1993); Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); Hill v. Chicago Housing Authority, 233 Ill. App. 3d 923, 599 N.E.2d 1118 (1992). So, the question left to us is whether RMI has removed itself from the general rule and assumed a duty to protect its tenants from criminal attacks. The answer is no.

The provisions of the handbook and the procedures manual, along with the deposition testimony of Chuck Needs reflect that RMI had a concern for the general welfare of its tenants, and a desire to keep on-site management informed of the activities taking place on the grounds. Its implementation of certain practices such as lighting, evening patrols, and communicating with residents regarding suspicious activities help assure the quiet enjoyment and basic safety of the tenants, in addition to providing a modicum of deterrence to criminal activity. We are reluctant to hold that a landlord’s use of these modest, conscientious measures imposes a full-blown duty to protect tenants from third-party criminal activities.

The Alabama Supreme Court faced a similar issue in the case of Dailey v. Housing Authority for the Birmingham Dist., 639 So.2d 1343 (1994). There, the tenant argued that certain provisions in a procedures manual, similar to those here, and the hiring of a guard to patrol the grounds, gave rise to a duty to protect tenants from criminal attacks. The court said the following:

all that the quoted statements from the documents and the HABD’s hiring of a security guard indicate is an attempt by HABD to discourage crime in the Metropolitan Gardens area, not a voluntary assumption of a duty to provide [the tenant] with protection from all criminal acts. We find the actions of HABD to be commendable, both in hiring security personnel and in setting out in writing those persons’ duties and roles. HABD was attempting to reduce the occurrence of crime in the Metropolitan Gardens neighborhood and to alleviate the fears and anxieties of its tenants.

The provisions undertaken by RMI in this case do not rise to such a level that RMI has assumed a duty to protect its tenants from criminal attacks by third parties. Therefore, we hold that this case is controlled by the general rule enunciated in Bartley v. Sweetser.

Affirmed.

       Appellant attached a number of exhibits to her response, but only three are abstracted. We will consider only those exhibits which are abstracted. See Columbia Mut. Ins. Co. v. Patterson, 320 Ark. 584, 899 S.W.2d 61 (1995); Rowe v. Druyvesteyn Constr. Co., 253 Ark. 67, 484 S.W.2d 512 (1972).


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    ARKANSAS DEPARTMENT of HUMAN SERVICES Division of Economic and Medical Services v. Idell WILSON and Farmers Bank & Trust Company, as Trustee of the Idell Wilson Irrevocable Trust
    95-905
    913 S.W.2d 783
    Supreme Court of Arkansas
    Opinion delivered January 22, 1996

      Richard B. Dahlgren, DHS Senior Attorney for appellant.

      Bell Law Firm, by: Rebecca A. Jones, for appellees.
   Robert H. Dudley, Justice.

On appeal, the circuit court ruled that the Department of Human Services arbitrarily determined that Idell Wilson was ineligible for benefits under the Arkansas Medical Assistance Program. We affirm the circuit court’s ruling.

On August 1, 1986, Idell Wilson executed an irrevocable trust agreement and created the Idell Wilson Trust. The agreement designated the Farmers Bank and Trust Company as the trustee. Mrs. Wilson contributed in excess of $20,000 to the principal of the trust. Under the terms of the trust, the trustee is to manage and invest the trust property and collect and receive the income. After deducting the expenses of the administration of the trust, the trustee is to distribute the net income to the grantor, Idell Wilson. The trustee is to determine the times at which to distribute the income, but is required to at least make quarterly distributions. The trust is irrevocable and is to terminate upon the death of Idell Wilson. At that time, the principal and the accumulated income are to be distributed to Bobby Don Wilson, Jackie Wilson Mooney, Mary Jo Wilson Rogers, and Jimmy Porter Wilson. The trust contains the following paragraph:

8. Irrevocability of Trust. This Trust shall be irrevocable, and the Grantor hereby expressly waives all rights and powers, whether alone or in conjunction with others and regardless of when and from what source she may have acquired such rights or powers, to alter, amend, revoke, or terminate the Trust, or any of the terms of this Agreement, in whole or in part.

Mrs. Wilson entered a nursing home on March 5, 1993, and subsequently applied to the Department of Human Services for Medicaid long-term care benefits. Medicaid is a governmental program designed to provide assistance to the aged, blind, and disabled and to dependent children whose incomes or resources are not sufficient to meet the costs of necessary medical care and services. Mrs. Wilson was approved to receive long-term care benefits. At the time of the application for long-term care benefits, the principal of the trust amounted to $21,733.57. The application was approved with benefits to commence on March 1, 1993.

On May 18, 1994, appellant Department of Human Services Division of Economic and Medical Services sent a notice of action to Mrs. Mooney, Mrs. Wilson’s niece who had cared for her. The notice stated that Mrs. Wilson’s case would be closed effective May 28, 1994, and gave the following reason:

New policy has come out to relook at all trust funds held by Long Term Care patients. We were exempting these funds as a resource, but now we are having to count the total value. The amount of her trust was verified 4-26-94, in the amount of 21,733.57. This is over the resource limit allowed for Long Term Care, therefore her case will be closed.

Mrs. Mooney requested a hearing about the closing of Mrs. Wilson’s case.

An administrative hearing was held on August 15, 1994. A service representative testified that the Office of Chief Counsel of the Department had reviewed Mrs. Wilson’s trust and determined that the trust should be considered a resource, which caused Mrs. Wilson to exceed the resource limit. The Office of Chief Counsel sent a notice of its decision to the case worker who made the decision to take adverse action on Mrs. Wilson’s case.

Mrs. Mooney testified that the trust was created from the sale of farm equipment and from a certificate of deposit. The trust was established with money owned solely by Mrs. Wilson. Mrs. Mooney testified that Mrs. Wilson was in good health for a woman of her age at the time she set up the trust. Mrs. Mooney testified that the individuals designated to receive the principal of the trust after Mrs. Wilson’s death are her nieces and nephews.

The hearing officer entered a final order determining that the county office acted correctly and in accordance with the current Medical Services Policy when it proposed the closure of Mrs. Wilson’s long-term care case.

The trustee timely filed a petition for judicial review in the circuit court. It was uncontested that the quarterly income from the trust is a resource available to Mrs. Wilson. The contest involved only the Department’s ruling that the principal of the trust constituted a resource available for Mrs. Wilson’s care and maintenance. The circuit court determined that the agency’s decision was arbitrary and granted the trustees’ petition. The Department raises one point on appeal.

The Department asserts that the agency correctly analyzed the “Idell Wilson Trust” in light of current laws and rules and regulations governing eligibility for Medicaid benefits and determined that the trust posed a bar to eligibility. The argument is without merit.

The agency erroneously interpreted and applied Ark. Code Ann. § 28-69-102. In addition, the agency erred in applying its regulation, and in applying the case of Arkansas Dep’t of Human Servs. v. Walters, 315 Ark. 204, 866 S.W.2d 823 (1993) to the facts of this case.

The standard of review of decisions by administrative agencies is well established:

The rules governing judicial review of decisions of administrative agencies by both the circuit and appellate courts are the same. Our review is not directed toward the circuit court but toward the decision of the agency recognizing that administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. If we find the administrative decision is supported by substantial evidence and is not arbitrary, capricious or characterized by an abuse of discretion, we uphold it.

Franklin v. Arkansas Dep’t of Human Servs., 319 Ark. 468, 472, 892 S.W.2d 262, 264 (1995) (citations omitted). “It is well-settled that we must affirm the decision of an administrative agency if there is substantial evidence of record to support it. Substantial evidence is valid, legal and persuasive evidence; such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 353, 609 S.W.2d 23, 25 (1980). “To have administrative action set aside as arbitrary and capricious, the party challenging the action must prove that it was ‘willful and unreasoning action,’ without consideration and with a disregard of the facts or circumstances of the case.” Id.

We have further written that “the construction of a statute by an administrative agency is not overturned unless it is clearly wrong.” Arkansas Bank & Trust Co. v. Douglass, 318 Ark. 457, 460, 885 S.W.2d 863, 865 (1994) (citation omitted). “However, where the statute is plain and unambiguous, this court will interpret the statute to mean only what it says.” Id.

Section 28-69-102 of the Arkansas Code Annotated provides in pertinent part:

(b) A provision in a trust, other than a testamentary trust, which limits the availability of, or provides directly or indirectly for the suspension, termination, or diversion of the principal, income or beneficial interest of either the grantor or the grantor’s spouse in the event that the grantor or grantor’s spouse should apply for medical assistance or require medical, hospital, or nursing care or long-term custodial, nursing, or medical care shall be void as against the public policy of the State of Arkansas without regard to the irrevocability of the trust or the purpose for which the trust was created and without regard to whether the trust was created pursuant to court order.
(c) Subsection (b) of this section is remedial in nature and is enacted to prevent individuals otherwise ineligible for medical assistance benefits from making themselves eligible by creating trusts in order to preserve their assets.

Under the plain wording of Ark. Code Ann. § 28-69-102(b), Mrs. Wilson is not disqualified from receiving Medicaid benefits. It is true that Mrs. Wilson’s trust prevented the trustee from distributing the principal of the trust until Mrs. Wilson’s death, but no provision in the trust “limits the availability of, or provides directly or indirectly for the suspension, termination, or diversion of the principal, income, or beneficial interest of [Mrs. Wilson] in the event that [she] should apply for medical assistance or require medical, hospital, or nursing care or long-term custodial, nursing, or medical care.”

Likewise, the Department’s regulation, Medical Services Policy 3332.2, does not provide that the principal of Mrs. Wilson’s trust should be considered in determining whether Mrs. Wilson is qualified for Medicaid benefits. Medical Services Policy 3332.2 #13 provides in pertinent part:

A Medicaid Qualifying Trust is a trust or “similar legal device” established by an individual (or his spouse) who is the beneficiary of the trust and who gives a trustee any discretion for use of the trust funds.
With a Medicaid Qualifying Trust, consider as a resource to the beneficiary (for eligibility purposes) the maximum amount that a trustee could disburse if he exercised his full discretion allowed under the terms of the trust. This amount is deemed available to the individual, whether or not the distribution is actually made.
(2) If Appointed Trustee with Full Discretion — If the client is beneficiary of a trust with an appointed trustee who has full discretion for use of trust funds for the client’s benefit, consider the trust assets as a resource to the client.
(3) If Appointed Trustee With Limited Discretion — If the appointed trustee has limited discretion, the assets will be considered available to the maximum extent allowed by the trust, whether they are distributed or not.
Examples:
(b) The trust allows only payment of interest earned on the principal. This will also be considered income in the month available, whether paid or not, and, if not paid or used, will be a resource in the month(s) following.

Medical Services Policy 3332.2 #13. Policy 3332.2 simply does not provide for consideration of the principal of a trust when the trustee is not allowed to make any distributions from the principal until the death of the grantor, as was done in the present case.

In Arkansas Dep’t of Human Servs. v. Walters, 315 Ark. 204, 866 S.W.2d 823 (1993), we addressed the retroactive application of Ark. Code Ann. § 28-69-102. In Walters, the appellee “created a trust for her ‘education, support, and general welfare’ while living a normal life, but, in order to become artificially impoverished and therefore eligible for Medicaid, she suspended the trustee’s power to pay her maintenance if she were placed in a nursing home.” Id. at 206, 866 S.W.2d at 823. The appellee in Walters had intended to preserve her assets for her heirs through the provision providing for the suspension of maintenance. We stated:

The Department’s regulations in effect before the legislation [Ark. Code Ann. § 28-69-102] was enacted did not expressly prohibit a person from artificially impoverishing himself or herself in order to become eligible for Medicaid. The General Assembly, without question, intended to put an end to such contrivances. The language of the Act is clear: Such a provision in a trust is void for determination of eligibility for Medicaid. In another Act of the same 1993 session, the General Assembly declared the public policy of this State to be that Medicaid is to be the payor of last resort. It is only after the individual has exhausted his or her own resources that the taxpayers are to assume the financial burden of an individual’s necessary medical expenses. Ark. Code Ann. § 20-77-101 (Supp. 1993).

Id. at 208-09, 866 S.W.2d at 825. The court further stated:

The spirit which promoted the Act, and the mischief sought to be abolished are unmistakably set out. The General Assembly said it intended to declare these trust provisions void and to allow the State to recover any benefits that might have been obtained with the use of such provisions. From this, it is apparent that the legislative intent was to give the Act retroactive effect.

315 Ark. at 209, 866 S.W.2d at 825. We gave Ark. Code Ann. § 28-69-102 retroactive effect to void the trust provision which provided for suspension of maintenance so that the appellee could qualify for Medicaid.

Walters is unlike the case at bar because the grantor in that case structured her trust in such a way that the trustee was to pay her maintenance while she was living a normal life, but the trustee’s power to pay the grantor’s maintenance was suspended if the grantor was placed in a nursing home. The grantor’s obvious goal was to circumvent the regulations which would disqualify her from obtaining Medicaid benefits, thus causing the taxpaying public to maintain her in a nursing home while she preserved her assets for her heirs. In the present case, Mrs. Wilson’s trust contains no similar provision. Under the terms of the Idell Wilson Trust the trustee is authorized to distribute the net income from the trust to Mrs. Wilson at such times as the trustee shall determine, but at least quarterly. This power is not altered depending on Mrs. Wilson’s medical or long-term care needs. The trustee is not authorized to distribute the principal until Mrs. Wilson dies, at which time the principal will be distributed to the named beneficiaries. Mrs. Wilson has never had access to the principal of the trust.

It does not appear from the trust agreement that Mrs. Wilson’s goal in establishing the trust was to force the taxpaying public to maintain her in a nursing home while she preserved her assets for her heirs. Additionally, the record does not support the conclusion that Mrs. Wilson acted surreptitiously in creating the trust. From the evidence in the record, it appears that Mrs. Wilson was not in poor health or in need of long-term care when she executed the trust. Nor does it appear that she was anticipating the need for long term care. Mrs. Wilson established the trust as an estate-planning device for the purpose of avoiding probate costs. The trust was also established as a means of managing Mrs. Wilson’s affairs. Mrs. Mooney testified:

[M]y uncle had just passed away and that what he had told us to do if — he wanted us to sell his things, and they lived out on the farm, and she could not live out on the farm by herself and to sell his things and put it up where she would have an income for the rest of her life to be taken care of.

In Thomas v. Arkansas Dep’t of Human Servs., 319 Ark. 782, 894 S.W.2d 584 (1995), the Department of Human Services determined that a trust was a Medicaid-qualifying trust. The circuit court affirmed the Department’s determination and this court affirmed the circuit court. The pertinent parts of the trust at issue in Thomas read as follows:

2. PURPOSE OF TRUST. This trust is established to meet the special or supplemental needs of Guy Leon Thomas, hereinafter called Primary Beneficiary. It is anticipated that the primary source of Primary Beneficiary’s medical, custodial and financial support shall come from governmental assistance, including Medicaid.
3. DISPOSITIVE PROVISIONS.
(a) During the lifetime of Primary Beneficiary, the Trustee shall pay to or apply for the benefit of Primary Beneficiary, such of the income and principal of the Trust Estate as the Trustee determines in its sole discretion is necessary for the reasonable comfort and happiness of Primary Beneficiary, but not for his food, clothing or shelter. The Trustee shall take into account the availability of government benefits in making expenditures and shall not make expenditures that will disqualify Primary Beneficiary from such benefits.

Id. at 785, 894 S.W.2d at 586. In affirming the determination that the trust was a Medicaid qualifying trust, we wrote:

[T]he public policy behind the Act is absolutely beyond dispute — trusts may not be created and used as devices to sequester resources for the purpose of qualifying individuals otherwise ineligible for Medicaid assistance. Ark. Code Ann. § 28-69-102(b) (Supp. 1993); see also Arkansas Dep’t of Human Servs. v. Walters, supra.

Id. at 789, 894 S.W.2d 588. The trust in the present case differs from the trust in Thomas in that it does not contain any provisions limiting the distribution of funds in order to assure that the beneficiary qualifies for Medicaid benefits.

The language of the statute is plain and unambiguous. Provisions in trusts that limit the availability of funds should the grantor apply for medical assistance or require medical or long-term care shall be void as against public policy. No such provision exists in this case. The Department’s regulation is plain and unambiguous and does not provide for consideration of the principal of the Idell Wilson Trust in determining whether Mrs. Wilson is eligible for Medicaid assitance.

Affirmed.


text:
    Tammy LUEDEMANN and Doyle Luedemann v. Tyson WADE
    95-769
    913 S.W.2d 773
    Supreme Court of Arkansas
    Opinion delivered January 22, 1996

      Henry, Walden & Halsey, by: Troy Henry, for appellants.

      Womack, Landis, Phelps, McNeill & McDaniel, by: Mark Alan Mayfield, for appellee.
   Robert H. Dudley, Justice.

On April 30, 1993, plaintiff Tammy Luedemann was driving her automobile on a rain-slick street in Jonesboro. Her car was the second automobile in a three-car string of vehicles going the same direction. Her car was about three car lengths behind the lead car. The lead car began to slow down, and plaintiff likewise began to slow her car. Defendant Tyson Wade was driving the third vehicle, his pickup truck, about two-and-a-half car lengths behind plaintiff’s car. Defendant testified that he saw the lead car start to slow down, saw plaintiffs brake lights come on, and, as plaintiff’s car was slowing down, it started sliding from side to side or “fishtailing.” Defendant’s pickup struck the rear of plaintiff’s car. Plaintiffs car caromed across the center line and struck two other vehicles. Plaintiff sustained physical injuries, property damage, and loss of wages. She and her husband filed suit against defendant. After a three-day trial the jury found that the accident was 80% fault of defendant and 20% fault of the plaintiff, and awarded $6,025.78 for plaintiffs personal injuries and $7,023.20 for her property damages. Plaintiff filed a motion for a new trial in which she alleged that the verdict for personal injuries was too small and was clearly against the preponderance of the evidence. The trial court denied the motion for a new trial, and plaintiff appeals. We affirm.

Plaintiffs first assignment of error is that the trial court committed error in an evidentiary ruling. The point is well taken, but the error was harmless.

The point came about in the following manner. Plaintiff called defendant as her first witness in her case-in-chief, and he testified, in part, as follows:

Q. It was raining and wet?
A. Yes, sir.
Q. Sir?
A. Yes, sir.
Q. And you were going about 30 or 35 miles per hour?
A. Yes.
Q. Is that right?
A. Yes, sir.
Q. And how far were you behind her car?
A. Two to two-and-a-half car lengths.
Q. Two, two-and-a-half car lengths. At some point did her car start slowing down?
A. It started — her brakes came on and like she was going to start to slow down and her car started swerving — lost control of her car and started swerving off the road.

Plaintiffs second witness was the police officer who investigated the accident. On direct examination, plaintiffs counsel asked the officer about the accident scene. In testifying about those facts, he stated that he arrived on the scene “minutes” after the accident. On cross-examination, defendant’s counsel asked the officer to repeat a statement defendant gave him at the scene about the way the accident occurred. Plaintiff objected to the hearsay statement. The trial court correctly sustained the objection. Rule 801 of the Arkansas Rules of Evidence defines hearsay as a statement made by the declarant while testifying at the trial and offered into evidence to prove the truth of the matter asserted. Ark. R. Evid. 801(c). The trial court then asked defense counsel if the statement could be qualified as an excited utterance under Ark. R. Evid. 803(2) by establishing the time interval between the accident and the statement and establishing the defendant’s appearance and emotional state. Counsel did not pursue the suggested line of questioning, but rather asked questions about the policeman’s routine in investigating accidents. Counsel then again asked the officer what the defendant told him about the accident and the trial court, over plaintiffs renewed objection, ruled that the officer could answer. The ruling was in error.

The theory of the excited utterance exception is simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994). For the statement to be an excited utterance, it would have been necessary to establish that the utterance was made soon enough after the accident for it to reasonably be considered a product of the stress of accident, rather than of intervening reflection or deliberation. Id. at 199, 884 S.W.2d at 951 (citing Smith v. State, 303 Ark. 524, 530, 798 S.W.2d 94, 97 (1990)). An excited utterance must have been made before there was time to contrive and misrepresent; that is, it must have been made before reflective and deliberative senses took over. Russell v. State, 306 Ark. 436, 815 S.W.2d 929 (1991). The defendant did not establish that he made the statement to the policeman before he had the ability to reflect and deliberate about his statement. Thus, the trial court erred in its ruling. Even so, the error was harmless.

The hearsay testimony of the policeman was as follows:

Q. Please refer to your report.
A. He said basically what I wrote down that Luedemann began skidding and lost control in front of him in response to a vehicle in front of her slowing to turn.
Q. And just to complete it, he was—
A. He was unable to stop, also, and struck Luedemann from behind.

The hearsay testimony given by the policeman about the defendant’s statement was identical to the direct testimony of the defendant. The plaintiff introduced the defendant’s direct testimony in her case-in-chief. Thus, it is difficult to afford meaning to her argument about prejudice since she had already introduced the identical testimony. In addition, two other witnesses, Ronnie Sammons and Bryan Dugger, fully corroborated the testimony. They observed the accident, and their testimony was not hearsay; thus, the hearsay testimony was cumulative evidence. See Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995). We have repeatedly held that “an evidentiary error is harmless if the same or similar evidence is otherwise introduced, at the trial.” Williams v. Southwestern Bell, 319 Ark. 626, 893 S.W.2d 770 (1995); Shamlin v. Shuffield, 302 Ark. 164, 787 S.W.2d 687 (1990); Thompson v. AAA Lumber Co., 245 Ark. 518, 432 S.W.2d 873 (1968). This doctrine is now embodied in Ark. R. Evid. 103(a), which provides that error may not be predicated upon a ruling which admits evidence unless a substantial right of the party is affected.

Appellant next contends that the trial court erred in denying her motion for new trial because the award of damages was too small. Appellant claimed $7,023.30 in property damage, $15,020.19 in medical expenses for personal injury, $523.60 for travel to receive medical treatment, and $12,758.60 in lost wages. She was under treatment from the date of the accident, April 30, 1993, through November of 1994. She testified that site was unable to return to her job at Wal-Mart after October of 1993. She produced exhibits detailing her costs for hospital treatment after the accident, treatment by eight different physicians and two physical therapists, prescription drugs, radiology reports, and various documents and letters from the treating physicians. She contended that her injuries required her to make 109 trips to various medical-care providers.

The jury found that appellee was 80% negligent and appellant was 20% negligent. It awarded damages of $6,025.78 for personal injuries and $7,023.20 for property damages.

Error in the assessment of the amount of recovery, whether too large or too small, is a ground for new trial even in the absence of other trial error. Kempner v. Schulte, 318 Ark. 433, 885 S.W.2d 892 (1994). An important issue is whether a fair-minded jury could have reasonably fixed the award at the challenged amount. Smith v. Pettit, 300 Ark. 245, 778 S.W.2d 616 (1989). When the primary issue on a motion for new trial is the alleged inadequacy of the damages and not a question of liability, this court will sustain unless there is a clear and manifest abuse of discretion. Id. This standard is similar to the one followed when the primary issue is liability and the trial judge has granted a new trial. Kempner v. Schulte, 318 Ark. at 435, 885 S.W.2d at 893 (quoting Warner v. Liebhaber, 281 Ark. 16, 661 S.W.2d 399 (1983)). The facts are viewed in a light most advantageous to the appellee. Id. at 436, 885 S.W.2d at 893.

We do not know the exact manner in which the jury arrived at $6,025.78 for personal injuries. However, the jury did find comparative fault of 20%, and such a finding would allow for a deduction in recovery. Gilbert v. Diversified Graphics, 286 Ark. 261, 691 S.W.2d 162 (1985). In addition, the jury could have refused to believe plaintiff’s testimony about her continuing pain and could have concluded that the extended period of. recovery was not necessary. Id. at 262, 691 S.W.2d at 163-64. The jury is not required to accept a party’s testimony as undisputed even when uncontradicted or unimpeached. Olmstead v. Moody, 311 Ark. 163, 842 S.W.2d 26 (1992). It is within the province of the jury to determine credibility and decide whom to believe. Id. Thus, we cannot say that the trial court abused its discretion in denying the motion for a new trial.

Next plaintiff argues that Act 424 of 1993 in effect shifts the burden of proof from plaintiff to defendant when the plaintiff has brought forth evidence of medical expenses, because that act removes the requirement of expert testimony regarding the reasonableness of medical expenses. This argument was not raised in the trial court, and we will not consider an argument raised for the first time on appeal. Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995).

Affirmed.


author: David Newbern, Justice.

text:
    Harold L. FRANCE v. FORD MOTOR CREDIT COMPANY
    95-612
    913 S.W.2d 770
    Supreme Court of Arkansas
    Opinion delivered January 22, 1996

      Lingle & Corley, by: James G. Lingle, for appellant.

      Griffin Smith, for appellee.
   David Newbern, Justice.

This is a replevin case. The appellant, Harold L. France, bought a used tractor and entered an installment contract to pay the appellee, Ford Motor Credit Company (Ford Credit), for it. Mr. France tried on two occasions to prepay the full obligation, as permitted by the contract, by personal check. Because of errors which occurred in the encoding of the first check and in drawing the second one, Mr. France’s account was debited for only small portions of the amount due. Mr. France thereafter refused to pay the balance. Ford Credit sought to replevy the tractor. Mr. France claimed, and argues on appeal, that the obligation was “suspended” according to Ark. Code Ann. § 4-3-310 (Repl. 1991) and, therefore, Ford Credit was not entitled to replevin. Mr. France also contended, and now argues, that Ford Credit’s remedy is against its agent which made the encoding error and not against Mr. France. The Trial Court held replevin was proper, and we affirm.

The purchase price of the tractor was $10,035. Mr. France paid $2,000 down. The amount that remained, including finance charges, was $9,845.76. Mr. France was to make 47 monthly payments of $205.12 beginning on September 23, 1993.

Prior to the date that the first installment was due, Mr. France elected to pay the balance in full. After deducting items such as unearned interest and insurance cancellation rebate, the outstanding balance was $8,506.19. On August 11, 1993, Mr. France’s spouse, Connie S. France, an attorney, drew check #2224 on their joint account at the Bank of Eureka Springs to the order of Ford Credit for that amount. As directed by the contract, the check was sent to a Dallas, Texas, address.

The address was that of a box monitored by Mellon Financial Services (Mellon). Under agreement with Ford Credit, Mellon encoded the amount of the check, using magnetic ink, in the lower right-hand corner and forwarded it to Ford Credit’s depositary bank in Dallas, Texas Commerce Bank. The encoding was done incorrectly in the amount of $506.19 rather than $8,506.19 The magnetic ink encoding enables the next bank in the chain of collection to process the check mechanically.

Texas Commerce Bank processed the check mechanically, crediting Mr. France with $506.19. Mr. France’s check was then forwarded to the Bank of Eureka Springs, the bank upon which it was drawn. The Bank of Eureka Springs debited the France account $506.19.

The encoding error was discovered, and on September 13, 1993, Ms. France attempted to draw a second check, #2313, for the remaining $8,000 balance. In the place on the check where the amount is shown numerically, the figure “$8,000.00” appeared; however, on the line where the amount is written out Ms. France wrote “Eight dollars and 00/100.”

Check #2313 was sent through the same channels as the previous check. Mellon made another error and encoded the check, not for $8,000 or for $8, but for $800. These words appear to have been stamped on the front of the check: “AMOUNT GUARANTEED TO BE,” and immediately below appears the handwritten figure “8,000.”

Texas Commerce Bank credited $800 to the France account with Ford Credit and sent #2313 on to the Bank of Eureka Springs. As words prevail over numbers, Ark. Code Ann. § 4-3-114 (Repl. 1991), the Bank of Eureka Springs debited the France account $8.00, and notified Texas Commerce Bank which reversed the $800.00 credit and substituted $8.00. Ford Credit thus was paid $8.00. Mr. France’s account has been charged, and Ford Credit has received, a total of $514.19, leaving a balance of $7992. Ford Credit filed its complaint for replevin of the tractor on October 12, 1994. The “guarantee” was apparently ignored in the collection process.

1. Replevin

Section 4-3-310 deals with the effect of an uncertified check issued in payment of an underlying obligation such as the contract in this case. The statute, in pertinent part, provides:

4-3-310. Effect of instrument on obligation for WHICH TAKEN.
(a) Unless otherwise agreed, if a certified check, cashier’s check, or teller’s check is taken for an obligation, the obligation is discharged to the same extent discharge would result if an amount of money equal to the amount of the instrument were taken in payment of the obligation. Discharge of the obligation does not affect any liability that the obligor may have as an indorser of the instrument.
(b) Unless otherwise agreed and except as provided in subsection (a), if a note or an uncertified check is taken for an obligation, the obligation is suspended to the same extent the obligation would be discharged if an amount of money equal to the amount of the instrument were taken, and the following rules apply:
(1) In the case of an uncertified check, suspension of the obligation continues until dishonor of the check or until it is paid or certified. Payment or certification of the check results in discharge of the obligation to the extent of the amount of the check.
***

As Mr. France does not contend his obligation has been discharged, the first sentence of § 4-3-310(b)(l) providing for “suspension of the obligation” is all that is at issue. We have found no case or other authority which addresses the facts presented here, but the language of the statute leaves us with little doubt as to the proper resolution of this case. It does no more than recognize the uncertainty attendant upon an uncertified and unpaid check and suspends the obligation until that uncertainty is resolved. See Cornwell v. Bank of America Nat. Trust and Sav. Ass’n, 274 Cal. Rptr. 322 (1991). In this case, the two checks submitted to Ford Credit have been paid, but in amounts less than the amount owed. The suspense is over, and all are aware of the amount of Mr. France’s obligation to Ford Credit which has yet to be satisfied. In this case, the statute provides no defense to the replevin action.

2. Other remedies

Mr. France contends Ark. Code Ann. § 4-4-209 (Repl. 1991) provides Ford Credit a remedy against Mellon which should have been pursued rather than the replevin action against him. Section 4-4-209 provides:

Encoding and retention warranties.
(a) A person who encodes information on or with respect to an item after issue warrants to any subsequent collecting bank and to the payor bank or other payor that the information is correctly encoded. If the customer of a depositary bank encodes, that bank also makes the warranty.
***
(c) A person to whom warranties are made under this section and who took the item in good faith may recover from the warrantor as damages for breach of warranty an amount equal to the loss suffered as a result of the breach, plus expenses and loss of interest incurred as a result of the breach.

The statute provides warranties to collecting banks and payors but not to a payee such as Ford Credit.

The record does not show how the “guarantee” appeared on the check or who placed it there. Mr. France’s argument assumes it to have been stamped and written on the check by Mellon and thus that it could have formed the basis of recovery by Ford Credit against Mellon. Nothing in the record suggests that Mr. France in any way guaranteed the check to be for $8,000 or was asked by Mellon or any other bank in the collection chain to do so. No authority whatever is cited for the contention that the “guarantee” limited Ford Credit’s remedies against Mr. France. Nor does he cite any authority or render convincing argument that the “guarantee” resolved the conflict between the written and figure amounts on the check. Certainly the Bank of Eureka Springs and Texas Commerce Bank did not consider it to have had any effect. Absent any citation of authority or convincing argument, we decline to consider the argument. Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995).

Affirmed.

Glaze, J., concurs.

Brown, J., not participating.


author: Tom Glaze, Justice.

text:
    Ge ZHAN v. Nancy E. SHERMAN
    95-794
    913 S.W.2d 776
    Supreme Court of Arkansas
    Opinion delivered January 22, 1996

      Craig Lambert, for appellant.

      James, Yeatman & Carter PLC, by: Paul J. James, for appellee.
   Tom Glaze, Justice.

In March of 1993, appellee Sherman advertised the sale of her 1983 Oldsmobile in the newspaper. Her ad asked for $2,500, but she hoped to get $2,200.00, which is what she believed the car was worth. Appellant Ge Zhan responded to Sherman’s ad. Sherman permitted Zhan to test drive the car which was parked in Sherman’s driveway. The car was on a slope and when Zhan entered the car, she pulled the gear shift out of park before turning on the engine. As a consequence, the car rolled down the driveway where it ran into someone’s fence. The fence and the right rear quarter panel of the car were damaged. A Little Rock police officer, Tommy Hudson, came to investigate the accident and while there, pulled the car out of the fence. As a result of Zhan’s actions, Sherman paid for damages to the fence and ended up selling her damaged car to a third party, Herb Peach, for 1,000.00, less $200.00 which Sherman agreed to pay for repairing the car’s radiator.

Sherman later filed suit against Zhan, alleging Zhan’s negligence had caused her damages in the amount of $1,334.36. A bench trial resulted, and after hearing the testimony of Sherman, Zhan, Police Officer Hudson and Peach, the trial court found Zhan’s negligence caused Sherman damages in the amount of $800.00 to the car and $134.36 to the fence. The trial court also awarded $189.64 to Sherman for costs. On appeal, Zhan does not question the trial court’s finding of negligence, but instead claims the trial court erred in calculating Sherman’s damages in the amount of $989.64 and arguing the amount was based upon speculation and inadmissible hearsay. Zhan also argues the trial court erred in awarding costs, stating the amount awarded is not supported by the record.

In her first argument, Zhan recognizes that, under Arkansas law, the measure of damages to automobiles is the difference in the fair market value of the automobile before and immediately after the accident. See Ark. Code Ann. § 27-53-401 (1987); AMI Civil 3d 2210 (1989); Daughhetee v. Shipley, 282 Ark. 596, 669 S.W.2d 886 (1984). This court has also held that, when proving damages for property that was not a total loss, the difference in fair market value may be established by the reasonable cost of repairing the damaged property. Minerva Enter., Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992). Here, Zhan concedes Sherman showed her car was worth $2,200.00 before Zhan damaged it. However, Zhan’s contention is that Sherman failed to prove the value of her car after the accident. Zhan is wrong.

This court has consistently allowed the property owner to give his or her opinion of the value of damaged property. Hickman v. Carter, 315 Ark. 678, 870 S.W.2d 382 (1994); Minerva Enter., Inc., 308 Ark. 291, 824 S.W.2d 377. Here, Sherman testified that the after value of her car was $1,000.00, making the difference in the fair market value or loss to be $1,200.00 ($2,200.00 minus $1,000.00). The trial court questioned Sherman’s after-value figure, suggesting the evidence reflected that her damaged car was worth more than $1,000.00. In fact, the trial court entered judgment in the amount of $800.00, which reflects a higher after value than Sherman gave her damaged car. Sherman never questioned the trial court’s reduction of Sherman’s proposed $1,200.00 damage amount; instead, it is Zhan who complains that the damages were awarded in error.

Zhan argues that it is unclear how the trial court arrived at its $800.00 figure, and therefore the amount was undoubtedly based upon speculation. In sum, Zhan asserts Sherman did not present sufficient evidence of the fair market value of the car. Additionally, she says the court committed reversible error when it allowed Sherman to introduce inadmissible hearsay, a repair estimate, which reflected the cost to repair Sherman’s car was $1,077.09.

We would initially point out that regardless of the inadmissibility of the repair estimate introduced by Sherman, this court has held that a nonjury case should not be reversed because of the admission of incompetent evidence, unless all of the competent evidence is insufficient to support the judgment or unless it appears that the incompetent evidence induced the court to make an essential finding which would not otherwise have been made. Butler v. Dowdy, 304 Ark. 481, 803 S.W.2d 534 (1991). First, the repair estimate amount was only $122.91 more than the competent value testimony given by Sherman; thus that estimate evidence cannot be said to have affected the trial court’s findings or award of damages any more than Sherman’s testimony.

We next mention that, besides Sherman’s owner-value testimony concerning damages, Officer Hudson testified, without objection, that he believed Sherman’s car had been damaged in the approximate amount of $200.00. Peach, the purchaser of the damaged vehicle, concluded he believed the car was worth the $1,000.00 he was willing to pay for it. In sum, the evidence reflects the car damages ranged from as much as $1,200.00 and as little as $200.00.

Our cases give the factfinder, jury or trial court, some latitude in its decision in awarding damages when arriving at a fair market value figure and have not required exactness on the proof of damages. See Lancaster v. Schilling Motors, Inc., 299 Ark. 365, 772 S.W.2d 349 (1989); Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980); see also Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985). If it is reasonably certain that some loss has occurred, it is enough they can be stated only proximately. Dr. Pepper Bottling Co. v. Frantz, 311 Ark. 136, 842 S.W.2d 37 (1992). We conclude that is the situation here and hold the competent evidence supports the trial court’s award of $800.00 for the car’s damages.

In presenting her first argument, Zhan also complains about the trial court’s ruling, allowing Sherman to introduce an invoice or bill, reflecting the fence damage amounted to $134.36. Again, Zhan’s complaint is that the bill was inadmissible, prejudicial hearsay requiring reversal. In making this argument below and on appeal, Zhan ignores Sherman’s unobjected to testimony that she had paid $134.36 for the repair of the fence. Based on this competent evidence, we affirm the trial court’s award for the damaged fence.

For her second point, Zhan argues that, at the close of the trial below, the trial court ordered Zhan to pay Sherman’s costs in the amount of $44.24, including filing fee and service costs. These costs were mentioned during trial. However, when the trial court’s judgment was entered, it awarded $189.64 in costs. Based on the record, Zhan submits she is obligated to pay only the filing fee cost because Sherman waived service costs at trial and limited her cost request to the filing fee.

Under ARCP Rule 54(d), costs authorized by statute or by the rules of civil procedure shall be allowed to the prevailing party if the court directs, unless a statute or rule makes an award mandatory. In construing this rule, our court has held that Rule 54(d) gives the trial judge discretion in awarding authorized costs. Darragh Poultry & Livestock Equip. Co. v. Piney Creek Sales, Inc., 294 Ark. 427, 743 S.W.2d 804 (1988).

We affirm the trial court’s award of costs because Zhan could have raised this issue after the judgment was entered. See ARCP Rule 52 (a) and (b). If Zhan believed the trial court erred in its cost award, she could have requested the judgment be amended to comport with the proof and law. Because Zhan failed to raise that issue below, we will not consider it on appeal. Oglesby v. Baptist Medical Sys., 319 Ark. 280, 891 S.W.2d 48 (1995).

       The radiator was not a repair required as a result of Zhan’s accident.


author: Donald Corbin, Justice.

text:
    Bob SOLOMON v. STATE of Arkansas
    CR 95-548
    913 S.W.2d 288
    Supreme Court of Arkansas
    Opinion delivered January 22, 1996

      Stuart Vess, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Donald Corbin, Justice.

Appellant, Bob Solomon, appeals the judgment of the Pope County Circuit Court convicting him of the first-degree murder of his spouse, Janice Solomon, and sentencing him to imprisonment for forty years. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant admitted that he shot the victim, but argued that the shooting was accidental. Appellant raises five arguments for reversal, among them that it was error for the trial court to refuse to exclude three of the state’s witnesses from the courtroom pursuant to the witness-sequestration rule, Ark. R. Evid. 615. We agree and reverse for a new trial. We find appellant’s other arguments are meritless, but discuss them for the benefit of the trial court upon retrial.

Witness-sequestration rule

At the commencement of the trial, the trial court ruled that state’s witnesses, Jennifer Patty, Peggy Barker, and Teresa Patty, the victim’s daughters, could remain in the courtroom despite appellant’s invocation of the witness-sequestration rule. Rule 615. The trial court stated that the victim’s daughters were exempted from the witness-sequestration rule by Ark. R. Evid. 616, which provides that the victim of the crime, as well as the parent, guardian or custodian of a minor victim, has the right to be present during the trial notwithstanding Rule 615. As the state concedes, the trial court ruled in error since none of the victim’s daughters was the victim of the murder and no minor victim was involved. See Williams v. State, 320 Ark. 67, 894 S.W.2d 923 (1995).

The state argues that the trial court’s error does not warrant reversal, however, because appellant has failed to demonstrate prejudice. Appellant argues he was prejudiced by the fact that the victim’s daughters were allowed to listen to the other testimony, thereby allowing them a clear opportunity to shape their testimonies to match the other witnesses. Prejudice is not presumed and we do not reverse absent a showing of prejudice. King v. State, 322 Ark. 51, 907 S.W.2d 127 (1995); Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).

Rule 615 expressly provides that “the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses[.]” We have stated that the purpose of Rule 615 is to expose inconsistencies in the testimonies of different witnesses and “ ‘to prevent the possibility of one witness’s shaping his or her testimony to match that given by other witnesses at trial.’ ” King, 322 Ark. 51, 55, 907 S.W.2d 127, 129 (quoting Fite v. Friends of Mayflower, Inc., 13 Ark. App. 213, 682 S.W.2d 457 (1985)). The state called thirteen witnesses in all, six of whom testified prior to the victim’s daughters. The victim’s daughters were not recalled to the stand.

Briefly summarized, the testimony of the state’s six witnesses who testified before the victim’s daughters is as follows. Attorney William F. Smith first testified that the victim was his former client, that part of his practice consisted of divorce cases, and that, approximately one month prior to the shooting, the victim inquired about his retainer for a divorce action and stated that she might be coming to see him. The next four witnesses, Nurses Paula McAlister and Becky McCain and Drs. Roxanne Marshall and Charles Woodrow Jones, Jr., each testified to attending the victim at St. Mary’s Hospital emergency room in Russellville, where the victim was taken by appellant after the shooting. The sum of these witnesses’ testimonies was that the victim was alert and that she stated that she and her husband had argued about a divorce, that her husband had shot her, and that it was no accident. Nurse McAlister also testified that the victim stated that she wanted to see her daughters. The state’s sixth witness, Dr. Mark Myers, testified as to the details of the victim’s gunshot injury which he observed as he performed surgery on the victim at St. Mary’s. The victim died during the surgery.

Jennifer Patty, the victim’s twenty-two-year-old daughter, next testified that she went to the emergency room because appellant called and told her that she was needed there, and that he and the victim were out target shooting when the victim stepped in the way and he shot her. Ms. Patty testified that her sister, Peggy, met her at the emergency room later on, and that they went to the waiting room where they found appellant. Ms. Patty testified that she heard appellant tell Pope County Sheriff Jay Winters in the waiting room that he had told the victim he was “gonna blow her head off.”

Peggy Barker, the victim’s eldest daughter, next testified that when she went to the emergency room one of the nurses let her see the victim. Ms. Barker stated that the victim took her hand and told her to “tell them” that she and appellant had been arguing and that appellant had shot her on purpose. Ms. Barker testified that she remembered talking to Pope County Sheriffs Office Investigator James Hardy after the shooting and telling him that the victim had told her that appellant had shot her on purpose. Ms. Barker testified that appellant had told her that he had argued with the victim over a credit problem. Ms. Barker testified that she never told appellant’s counsel that she knew appellant would not intentionally kill the victim. Ms. Barker also testified as regards numerous other matters that were not addressed by any witness who testified before her.

Teresa Patty, the victim’s twenty-three-year-old daughter, next testified that, shortly after the shooting, appellant told her that he and the victim were arguing about a credit problem, that he got out the gun, that they were “arguing over the gun,” and that he shot her, but had not meant to. Ms. Patty testified that she was the closest of her sisters to appellant. Ms. Patty’s testimony did not reveal whether she was present at St. Mary’s Hospital on the day of the shooting.

We find appellant has demonstrated prejudice. This case was decided by the jury upon the conflicting testimonies presented as regards the issue of appellant’s intent when he shot the victim. It illustrates the need for the witness-exclusion rule to prevent the possibility of any of the victim’s daughters from shaping her testimony to that of a preceding witness. King, 322 Ark. 51, 907 S.W.2d 127; see also Fite, 13 Ark. App. 213, 682 S.W.2d 457 (decided under the presumed-prejudice rule of law).

Accordingly, we reverse the judgment of conviction and remand for a new trial. The following points of asserted error are addressed since they are likely to arise on retrial.

Sufficiency of evidence of intent

Appellant argues that the evidence was insufficient to prove that he acted with the purpose of causing the victim’s death. In determining whether there is substantial evidence, we review the evidence in the light most favorable to the appellee, and it is permissible to consider only that evidence which supports the guilty verdict. Williams v. State, 321 Ark. 635, 906 S.W.2d 677 (1995). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Id.

Appellant testified that he shot the victim as they were driving in their 1984 Ford pickup truck on a state highway near Moreland on the afternoon of July 17, 1993. The evidence showed that appellant and the victim were seated as driver and passenger, respectively, when appellant fired a single bullet into the victim’s chest with a Smith and Wesson semi-automatic nine millimeter caliber firearm. Appellant testified that, at the time of the shooting, he and the victim were arguing about a credit problem, that the victim had become very upset, and, that, with one hand, he retrieved the weapon, which he knew to be loaded, from the console between their seats to put the weapon beyond the victim’s reach. Appellant testified that the victim simultaneously grabbed the weapon’s barrel and it accidentally discharged. As noted above, appellant’s story was contradicted by the testimony of the victim’s emergency-room health-care providers who stated that she told them that appellant shot her on purpose.

Resolution of the conflicting versions of these facts rested with the jury. Harris v. State, 262 Ark. 680, 561 S.W.2d 69 (1978). Clearly, the jury did not believe appellant’s version. There is substantial evidence to support the conviction for first-degree murder.

Prior bad acts of the victim

Appellant also argues that proffered evidence of the victim’s character, by testimony of specific instances of her prior violent conduct toward him, was erroneously excluded. Our review is limited to the proffered cross-examination testimony of state’s witness, Sheriff Winters, that he heard appellant tell another law enforcement officer that the victim had pulled a gun on him during their previous arguments and, once, had gotten mad and almost shot off his ear. Ark. R. Evid. 103; Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994). Appellant asserts the excluded testimony was relevant to his defense of accident. Because appellant’s defense was accident, rather than self-defense, the trial court excluded testimony of the victim’s prior bad acts. Appellant argues that the proffered testimony was admissible as evidence of a pertinent trait of the victim’s character, in light of his defense of accident, pursuant to Ark. R. Evid. 404(a), and as evidence of other acts by the victim that were relevant to proof of his intent on the day of the shooting, pursuant to Ark. R. Evid. 404(b). We need not address this argument on its merits. Even assuming Sheriff Winters’s excluded evidence was admissible under Rule 404, it was not admissible under Ark. R. Evid. 405, which governs methods of proving character.

Rule 405 generally limits proof of character to reputation or opinion testimony. However, pursuant to Rule 405(a), a character witness may testify on cross-examination as to relevant specific instances of conduct. Wilburn v. State, 289 Ark. 224, 711 S.W.2d 760 (1986). The abstract, however, reveals no evidence from Sheriff Winters, on direct examination, regarding the victim’s character. Hence, the proffered evidence was not admissible under Rule 405(a) as it was beyond the scope of cross-examination. Ark. R. Evid. 611.

Rule 405(b) also permits proof of character by specific instances of conduct in cases in which character or a trait of character is an essential element of a charge, claim or defense. Such a character trait must be “an operative fact which under substantive law determines the rights and liabilities of the parties.” McClellan v. State, 264 Ark. 223, 226, 570 S.W.2d 278, 280 (1978). Appellant does not satisfy this standard because the victim’s violent character was not an essential element of the murder charge or of his defense of accident. As the trial court correctly ruled, had appellant’s defense been self-defense, the result might have been otherwise. Thompson v. State, 306 Ark. 193, 813 S.W.2d 249 (1991). Appellant sought to use the proffered testimony circumstantially rather than as a direct substantive issue, and, therefore, it was not admissible under Rule 405(b). McClellan, 264 Ark. 223, 570 S.W.2d 278.

Suppression of appellant’s pre-arrest statement

Sheriff Winters testified: “[Appellant] said that he pointed the gun at her and said, ‘I’m going to blow your head off; but that he didn’t mean it and that the gun just went off.” Appellant argues his statement should have been suppressed because it was given before the Miranda warnings were administered. The trial court ruled that the testimony was admissible because appellant’s statement was voluntarily given under circumstances that did not constitute a custodial situation that required prior Miranda warnings.

Appellant testified that he did not make the challenged statement.

The Miranda warnings were intended to inhibit abuse of the federal constitutional Fifth Amendment right against self-incrimination of a person by reason of custodial interrogation by law enforcement officers. Stone v. State, 321 Ark. 46, 900 S.W.2d 515 (1995). “In custody” means a person who is deprived of his freedom of action by formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Id. In resolving the question of whether a suspect was in custody at a particular time, the only relevant inquiry is how a reasonable man in the suspect’s shoes would have understood his situation. State v. Spencer, 319 Ark. 454, 892 S.W.2d 484 (1995).

On appeal, we make an independent determination of the voluntariness of a confession. Trull v. State, 322 Ark. 157, 908 S.W.2d 83 (1995). We do not reverse the trial court, absent a finding of clear error, recognizing that conflicts in the testimony are for the trial court to resolve. Id. Here, the record shows that appellant made the challenged pre-arrest statement in the hospital’s waiting room after Winters had twice advised appellant that he was not there to take any statements and just wanted to locate and secure the weapon, and that, after the challenged statement was made, Winters left appellant unattended in the waiting room to locate the weapon, then returned to appellant in the waiting room approximately ten minutes later and verbally advised appellant of his Miranda rights. On these facts, we are not persuaded that the trial judge’s ruling was clearly against the preponderance of the evidence.

Mistrial

Appellant argues it was error to refuse his three motions for mistrial based upon the emotional displays of the victim’s daughters in the presence of the jury. The first two motions related to incidents that occurred because of the Rule 615 violation and therefore will not arise on retrial.

The third motion was made on the third day of trial, during an in-camera proceeding that was conducted when the court reconvened following its lunch break after closing arguments. Appellant moved for a mistrial on the ground that the victim’s daughters had approached the jury in close proximity as they were escorted by the bailiff from the courthouse to a van to conduct them to lunch, and had created a scene by screaming “I want my momma” and crying. The bailiff, when questioned by the trial court, corroborated appellant’s description of the scene. The bailiff also stated that he had seen no one trying to speak to the jury and that he had hurried the jury into the van. The bailiff stated that he had not seen the victim’s family at the scene of the disruption before, but had seen appellant’s family there every morning. The trial judge denied the motion, but stated that he would admonish the families not to engage in similar displays.

Appellant then informed the trial judge that two or three other bystanders, including Mr. John Lynch, who were friends and relatives of appellant, had observed the lunch scene and would testify in accordance with the bailiff. Subsequently, appellant filed a motion for a new trial and attached Mr. Lynch’s affidavit that he had observed two of the victim’s daughters “laughing and snickering and making light of the situation” after the bailiff had left with the jury.

We have held that emotional outbursts by the relatives of murder victims are not unusual and are difficult to control. Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976). The trial court exercises a wide latitude of discretion in the control of the trial and resorts to the drastic remedy of a mistrial as a last resort. Id. The record, as abstracted, fails to show that appellant obtained any cautionary instruction to the jury. The only indication that the emotional display was extreme or was orchestrated was Mr. Lynch’s affidavit. Clearly, the trial judge was in a superior position to evaluate the prejudicial effect of the display upon the jury and to evaluate the credibility of the witnesses, including Mr. Lynch, regarding the lunchtime incident. We conclude no abuse of discretion was committed by the trial court in denying appellant’s third motion for mistrial.

The judgment is reversed on the basis of the Rule 615 violation and remanded for retrial.


author: Robert L. Brown, Justice.

text:
    Jerry SMITH and Brenda Smith v. Marilyn HANSEN, Lynne Rice, Jeffrey Scott Metcalf, Chris Young, Southern Guaranty Insurance Company, and Continental Casualty Company
    95-315
    914 S.W.2d 285
    Supreme Court of Arkansas
    Opinion delivered January 22, 1996
    [Petition for Rehearing denied March 4, 1996.]

      R. David Lewis, for appellants.

      Mays & Crutcher, P.A., and Wallace, Hamner & Adams, by: Michael A. Leboeuf and Dale Adams, for appellees and cross-appellants Hansen and Rice.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: Michael L. Alexander and Christopher Gomlicker, for appellee Southern Guaranty Insurance Company.

      Wright, Lindsey & Jennings, by: Sammye L. Taylor and Judy M. Robinson, for appellee Continental Casualty Company.
   Robert L. Brown, Justice.

Appellants Jerry Smith and Brenda Smith, his wife, appeal on several bases but primarily from an order dismissing their negligence claim against the appellees Marilyn Hansen and Lynne Rice and from a remittitur order reducing their verdict for compensatory damages against Hansen and Rice from $250,000 to $100,000. Hansen and Rice, as appellees, assert as a cross-appeal the same point urged by the Smiths — that it was error for the trial court to dismiss the Smiths’ negligence claim. In addition, they argue on cross-appeal that the trial court erred in not granting them a new trial and in allowing the outrage claim and the issue of punitive damages to go to the jury. We affirm the trial court’s dismissal of the negligence claim and its rulings on the other matters at issue, but we reverse the order of remittitur.

The facts of this case arise out of an allegation by the Smiths that Hansen and Rice contracted with appellees Jeffery Scott Metcalf and Chris Young to rob and beat the Smiths. According to the testimony at trial, Jerry Smith once worked for Hansen and Rice as a salesman of medical supplies at their business known as Electronic Finders Incorporated (“EFI”) in Little Rock. In order to enhance his income, Smith decided to leave EFI and set up his own medical supply firm called Sources Inc. EFI sued Smith for violation of a non-compete agreement in September 1991, and the case was settled in April 1992.

During the early morning hours of July 3, 1992, Jerry Smith was awakened in his bedroom by a flashlight in his face. He was struck four or five times by the flashlight. He fell out of bed, and the intruder placed the barrel of a pistol behind his right ear and threatened to “blow [Smith’s] head off” if Smith looked at him or tried anything. The intruder accused Smith of sleeping with the intruder’s sister which Smith denied, and he then accused Smith of cheating on Smith’s business partner. He added that the business partner told him to collect $500 from Smith.

The intruder next changed his story and told Smith that the business partner offered him $500 to hurt Smith. He added that he was going to meet Smith’s business partner that day, but Smith knew this to be a lie because his partner was in the hospital for bypass surgery. His wife, Brenda, was grabbed around the neck and hit two or three times. She was threatened with rape and became hysterical. The intruder asked where the guns and jewelry were located, but determined that there were no guns. He apparently decided against taking the jewelry.

A second intruder was present for part of the beating, and he assisted in tying up Smith and his wife. Smith suffers from a degenerative disc disease, and the first intruder said that he knew Smith had a bad back. He then kicked Smith in the small of his back. The first intruder repeatedly asked for more money and eventually took approximately $250 from the Smiths and Jerry Smith’s pickup truck as well. The truck was later recovered in Boyle Park in Little Rock. As a result of the incident, the Smiths have had difficulty sleeping and have sought counseling.

Following the attack, Jerry Smith told investigators from the Little Rock Police Department about Hansen’s and Rice’s dislike for him. After being contacted, Hansen and Rice cooperated with the police and led them to appellees Young and Met-calf. Young and Metcalf were subsequently arrested and prosecuted for robbery. Metcalf pled guilty and received probation. At the ensuing criminal trial for Young, the Smiths and Metcalf testified, as did Hansen and Rice under promise of immunity. The trial court dismissed the charges against Young due to lack of evidence corroborating the testimony of co-conspirators. On appeal by the State, this court declared that the trial court erred in dismissing the charges. See State v. Young, 315 Ark. 656, 869 S.W.2d 691 (1994).

On June 29, 1993, the Smiths filed this lawsuit and alleged assault and battery against Hansen, Rice, Young, and Metcalf. The complaint was later amended to include the tort of outrage and negligence. In their second amended complaint, the Smiths sought a declaratory judgment against appellees Southern Guaranty Insurance Company and Continental Casualty Company, both of which insured Hansen and Rice for acts of negligence related to their business. The declaratory judgment was for the purpose of determining whether the acts complained of comprised negligence. Prior to trial, counsel for Hansen and Rice moved to dismiss the Smiths’ negligence claim, and the trial court granted the motion.

At trial, Scott Metcalf testified that he grew up with Chris Young and that the two men visited the EFI offices on occasion to see Young’s sister, Rosalyn Lemons, who worked for Hansen and Rice. Metcalf stated that Hansen and Rice hired Young and him for $60 each to move their business furniture to a different location. They also hired the two men to follow an employee, Charles George, to determine whether he was doing business with a competitor. Metcalf further testified that Hansen and Rice “wanted something done” to Jerry Smith. He stated that Rice wanted Smith to have his arm or leg broken and that Hansen wanted damage done to Smith’s vehicles by slashing the tires or breaking the windows. Rice, he said, did most of the talking when they discussed the matter. They were told that Smith had a bad back. Metcalf and Young agreed to do what the women wanted for $2,000. Rice then gave them Smith’s address.

Metcalf described to the jury how Young and he broke into the Smith residence through an open window. He stated that Young went through Brenda Smith’s purse and that he tied up the Smiths on Young’s instructions. He added that though he was not present when it happened, it looked like Young had beaten Smith with the flashlight. The two men took Smith’s truck and abandoned it at Boyle Park. A few days later, Young and Metcalf met Hansen and Rice at a Wal-Mart store in Little Rock and received $50, according to Metcalf. A week after that, Young received another $100 from the two women. A meeting was set up at Denny’s restaurant where the two men expected to receive the balance of the $2,000 owed to them. When Hansen and Rice went to supposedly retrieve the money from the trunk of their car, Young and Metcalf were arrested by undercover police. Metcalf stated that he agreed to the contract beating because he was financially strapped, and he denied that there was any misunderstanding about what Hansen and Rice wanted done to Smith.

Rosalyn Lemons testified that she worked for Hansen and Rice for two years as a receptionist and that the two women wanted to get even with Smith for going into competition against them. Lemons testified that she heard Rice say in front of Hansen “just one karate chop to the back would do it.” Lemons also remembered that Rice asked Young whether he would hurt someone for money.

Lynne Rice admitted at trial that she had given Smith’s former address to Young but stated that Young told her about the beating and robbery after the fact and then demanded money. Marilyn Hansen told the jury that she did not like Smith and wanted his vehicle damaged, but she denied that she offered anyone payment to do this. She admitted that Smith’s competition was hurting EFI, and that EFI ultimately went bankrupt. She met Young at Wal-Mart after the beating and robbery, saw Smith’s drivers license in Young’s possession, and gave Young $100 to get his car fixed. She testified that she offered the money as a prepayment for help in moving office furniture during the upcoming week. She further testified that she told the two men at the meeting at Wal-Mart that there had been a big misunderstanding. Afterwards, she sought legal advice which resulted in her cooperation with the police.

Chris Young testified that he had previously been convicted of theft of property and theft by receiving and had served time in prison. His probation was revoked because of the Smith beating, but the criminal charges were dismissed against him, as has been already discussed. He stated that Hansen and Rice, who knew he had a record, hired the two men to move their offices and follow Charles George. He further testified that Rice “wanted Smith slowed down physically.” At trial, he denied giving the women a definite price to do the beating and denied actually participating in it. This testimony contradicted his deposition in which he testified that Rice promised him $2,000 for the job. That deposition was used to impeach Young’s testimony at trial. He admitted that he was told that a karate chop to Smith’s back “would be a good idea.”

The jury found that Hansen and Rice through their agents committed battery and outrage against the Smiths and awarded each of them $250,000 in compensatory damages and $500,000 in punitive damages against Rice and against Hansen, for a total award of $3,000,000. The jury further awarded each of the Smiths $25,000 in compensatory damages and $50,000 in punitive damages against Young and $1 in compensatory damages and $1 in punitive damages each against Metcalf. On motion by Hansen and Rice for remittitur, the trial court reduced each compensatory award from $250,000 to $100,000. Following the trial, the trial court also granted summary judgment in favor of Southern Guaranty and Continental Casualty on the basis that the jury found that Hansen and Rice acted intentionally and intentional conduct was expressly excluded from coverage.

The Smiths now appeal and primarily urge that the dismissal of the negligence claim and the order of remittitur were error. We note that Hansen and Rice filed the first notice of appeal and the Smiths filed a notice of cross-appeal, which was timely and appropriate. The Smiths, however, lodged the record and assumed the role of primary appellants while Hansen and Rice filed briefs styled as appellees and then raised new issues as cross-appellants. Though this role reversal is highly unusual, we observe no prejudice to the parties, and we will address the points raised on the merits.

I. Dismissal of the Negligence Claim

The Smiths mount three arguments in their appeal, all of which can be subsumed under the heading of “negligence” because they deal with dismissal of the negligence claim, refusal to instruct the jury on negligence, and summary judgment in favor of the insurance companies. Hansen and Rice successfully moved to dismiss the negligence claim before the trial court, but now also contend that the dismissal was error by the trial court. This, of course, they cannot do. They prevailed below and are bound by the trial court’s decision in their favor. See Walker v. Kazi, 316 Ark. 616, 875 S.W.2d 47 (1994). We will not consider their arguments on this point on appeal.

Appellees Southern Guaranty and Continental Casualty urge that the dismissal of the negligence claim was appropriate because Hansen and Rice owed no legal duty to the Smiths and further that the trial court did not err in granting summary judgment in their favor. The critical factor underlying the parties’ positions is that the insurance policies will cover damages resulting from negligence of Hansen and Rice where that is not the case for intentional torts.

The trial court dismissed the negligence claim but in doing so considered matters outside of the pleadings, including depositions of the parties, which converted the motion into one for summary judgment. See Ark. R. Civ. P. 12(b); First Commercial Trust Co. v. Lorcin Eng’g, Inc., 321 Ark. 210, 900 S.W.2d 202 (1995). With that in mind, we turn to the central issue which is whether Hansen and Rice owed a duty of care to the Smiths. If no duty of care is owed, the negligence count is decided as a matter of law, and summary judgment is appropriate. See First Commercial Trust Co. v. Lorcin, supra.

We have held that ordinarily one is not liable for the acts of another party unless a special relationship exists between the tortfeasor and the victim — in this case, between Hansen and Rice on the one hand and the Smiths on the other. First Commercial Trust Co. v. Lorcin, supra; Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994); Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). Moreover, in our analysis we further examine whether a special relationship exists between the actor (Hansen and Rice) and the third party (Metcalf and Young) which imposes a duty on the part of the actor to control the third party’s conduct. Id. This is in accordance with the Restatement of Torts which reads:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.

Restatement (Second) of Torts § 315 (1965).

The Smiths and Hansen and Rice fervently maintain that a claim for negligence is present under these facts. The essence of their argument is that Hansen and Rice negligently proclaimed their desire to see Jerry Smith hurt and his property damaged in the presence of a convicted felon, Chris Young, who took their statements seriously and acted on them. Young, according to the negligence theory, perpetrated the crime against the Smiths with Metcalf’s help, but absent any agreement with Hansen and Rice or clear direction from them to injure Jerry Smith.

We must disagree that a bona fide claim of negligence exists. Clearly, no special relationship existed between Hansen and Rice and the Smiths at the time of the beating. The question then becomes whether a special relationship giving rise to a duty to control existed at that time between Hansen and Rice and the two perpetrators of the crime. We fail to see that it did, excluding as we must the contract to beat Smith for $2,000 from our analysis. That leaves only an agreement between the parties to move furniture and a vague mission to follow an EFI employee named Charles George. There is nothing to suggest that Metcalf and Young were employees, agents, or otherwise subject to the control or guidance of Hansen and Rice.

This is markedly different from the case of Keck v. American Employment Agency, Inc., supra. In Keck, the employment agency sent a customer, Stacey Keck, to interview with a prospective employer, Joiner, who raped her. In that case, we based our decision in part on the degree of control the agency had over Joiner, which could have been exercised by the agency’s making further checks on him. In the instant case, there was no comparable or analogous business relationship between Hansen and Rice and the Smiths which involved Metcalf and Young. We conclude that no such relationship existed among the parties under these facts.

Nor do we view this as a matter where Hansen and Rice induced or encouraged tortious behavior by Metcalf and Young against the Smiths, as we held to be the case in Cobb v. Indian Springs, Inc., 258 Ark. 9, 522 S.W.2d 383 (1975). See also Restatement (Second) Torts § 876 (1979). In Cobb, a security guard for an Indian Springs mobile home park asked a 16-year-old to demonstrate the speed of his car through the park which resulted in injury to a young girl who was hit by the car. We held that a jury question was presented in the case and observed that the security guard was in a position of authority and was held in respect by the young people of the park, which could have influenced and encouraged the teenager to demonstrate the speed of the car. We view that consideration as analogous to the tortfeasor’s having some control over the third party who causes the injury and, again, to be a factor which is absent in the case before us. Nor do we view the testimony of Hansen and Rice, if you eliminate the contract, as constituting an inducement or encouragement to beat the Smiths, or even a suggestion that they do so.

In short, we agree with the trial court that this case presented a cause of action of intentional tort premised on a contract to beat but not a cause of action for negligence. Without the existence of some special relationship, or evidence of encouragement to third parties by one in a position of some control or authority over them, no duty of care flowed from Hansen and Rice to the Smiths. Offhand statements of dislike to a third party cannot constitute negligence in the absence of such a relationship. We hold that the trial court appropriately granted summary judgment on this issue.

II. Outrage

For their second point, the Smiths assert that the trial court erred in refusing to modify the outrage instruction, AMI 404. Specifically, they urge that extreme mental anguish beyond what a reasonable person is expected to endure as set out in AMI 404 is an impossible standard to meet.

The Smiths have no standing to make this argument. The trial court instructed the jury on the tort of outrage using AMI 404, and the jury returned a verdict in favor of the Smiths on this claim. As the prevailing party, the Smiths cannot now contend that AMI 404 should have been given in modified form. See Walker v. Kazi, supra; Bynum v. Savage, 312 Ark. 137, 847 S.W.2d 705 (1993). This point is meritless.

III. Remittitur

We turn next to the Smiths’ argument that the trial court erred in reducing the verdict awards from $250,000 to $100,000. We have held that a trial court may not substitute its judgment for the jury’s when there is a basis in the evidence for the award and when there is no evidence, appropriately objected to, which tends to create passion or prejudice. McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994); Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981). We review the issue of remittitur de novo and determine whether the amount of the judgment shocks the conscience of this court. Id.

In this case, the trial court made no finding that the jury award was the result of passion or prejudice (see Ark. Code Ann. § 16-64-123 (1987)), and we conclude that the compensatory damages awarded do not shock the conscience of this court. What is at issue here is an assault and battery which took place during the dead of night when the Smiths were in bed in their home. Jerry Smith was roused from his bed, beaten, and threatened with a pistol, and Brenda Smith was threatened with rape and choked. Both Smiths were tied up. The experience was unquestionably and understandably traumatic and cause for considerable mental anguish. Under these facts, we do not find the jury award of $250,000 as compensatory damages for each Smith against Hansen and Rice to be unconscionable. The remittitur order is reversed, and the matter is remanded with directions to reinstate the original verdicts of $250,000.

IV. Cross-Appeal

Hansen and Rice raise several issues in their cross-appeal, none of which has merit. They allege, initially, that the trial court erred in not granting them a new trial based on the excessiveness of the verdict. The standard of review for the denial of a motion for new trial is whether the verdict was supported by substantial evidence. Davis v. Davis, 313 Ark. 549, 856 S.W.2d 284 (1993); Scott v. McClain, 296 Ark. 527, 758 S.W.2d 409 (1988). Metcalfs testimony alone easily constitutes substantial evidence of agency, battery, and virulent conduct on the part of Hansen and Rice. As already discussed, evidence justifying considerable compensatory damages for mental anguish abounds, and the punitive damages do not strike this court as excessive. The trial court did not err in denying the motion.

Hansen and Rice next argue that the trial court was in error in permitting the issue of punitive damages to go to the jury. They particularly disagree with the large discrepancy between the punitive damages assessed against them and the damages assessed against Metcalf and Young. There is no set standard for measuring punitive damages, and the calculation of those damages lies within the discretion of the jury after due consideration of all the attendant circumstances. Cater v. Cater, 311 Ark. 627, 632, 846 S.W.2d 173 (1993). The penalty must be sufficient to deter similar conduct on the part of the same tortfeasor, and it should be sufficient to deter others who engage in similar conduct. Id. The jury is free to consider the extent and the enormity of the wrong, the intent of the parties, and the financial and social standing of the parties. McNair v. McNair, supra.

Hansen and Rice point out that no evidence was presented on their financial condition. They complain that they were prejudiced because, with no evidence in the record, the jury was free to assume that they could afford to pay a sizable punitive judgment, which they cannot. The Smiths respond that no showing of financial condition is required, and they emphasize the varying degrees of culpability to justify the discrepancy in the awards. We note that the outrage claim was directed only at Rice and Hansen, and further that Metcalf was the least culpable in that he did not strike the Smiths. He also testified on their behalf. The trial court did not err in submitting the issue of punitive damages to the jury.

Hansen and Rice further argue that a 1991 U.S. Supreme Court opinion requires a remand in this case on the issue of punitive damages. In Pacific Mut. Life Ins. Co v. Haslip, 499 U.S. 1 (1991), the Court analyzed Alabama’s law on punitive damages and observed that it has more than once approved the common law approach for assessing punitive damages. Haslip, 499 U.S. at 15. However, the Court did allude to the fact that due process considerations may come into play when unlimited jury discretion leads to extreme results in the punitive damages award. With general concerns of reasonableness in mind, the court held that the award in that case did not violate the Due Process Clause of the Fourteenth Amendment.

Our law, as evidenced by AMI 2217, is like Alabama’s and does not provide for unlimited jury discretion. Punitive damages, under AMI 2217, are awarded for deterrence and retribution purposes. AMI 2217 also instructs the jury that the imposition of punitive damages is not mandatory. We find no grounds for a remand on the basis of the Haslip decision. See J.B. Hunt Transport, Inc. v. Doss, 320 Ark. 660, 899 S.W.2d 464 (1995).

Finally, Hansen and Rice contend that the trial court erred in permitting the jury to even consider a verdict on the tort of outrage. They submit that there was no evidence to support the finding that their conduct was so outrageous and extreme as to be regarded as atrocious and utterly intolerable. Again, they submit that their conduct was negligent at best. They implore this court to remand the case with the tort of outrage claim removed. We disagree. Substantial evidence was introduced to satisfy the elements of the tort of outrage by means, primarily, of Metcalfs testimony which established a contract beating instigated by Hansen and Rice.

Hansen and Rice further urge that a general verdict amount renders it impossible to know whether the jury award was based on battery or outrage. Because we do not consider submission of the outrage count to the jury to be error, this point presents no basis for reversal. In addition, we have held that the time to object to any irregularity in the verdict form is prior to the discharge of the jury. P.A.M. Transp., Inc. v. Arkansas Blue Cross and Blue Shield, 315 Ark. 234, 868 S.W.2d 33 (1993); Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). Hansen and Rice raised no objection to the verdict forms either before or after the verdict was rendered.

Affirmed in part. Reversed in part and remanded.

Glaze, J., not participating.


author: Per Curiam.

text:
    Allen ABEL and Liberty Real Estate, et al. v. Andrew KOWALSKI
    94-988
    913 S.W.2d 788
    Supreme Court of Arkansas
    Opinion delivered January 22, 1996

      Bill Hatch, pro se.
    No response.
   Per Curiam.

A Bill Hatch purportedly appears pro se, but tenders a motion on behalf of appellants Allen Abel and Liberty Real Estate, requesting certain documents be added to the record on appeal. First, we note that Hatch is not a licensed attorney and may not practice law in Arkansas. See Ark. Code Ann. § 16-22-206 (1987); see also All City Glass & Mirror, Inc. v. McGraw Hill Information Sys. Co., 295 Ark. 520, 750 S.W.2d 395 (1988). Therefore, Hatch may not represent Abel or Liberty Real Estate in this case. Second, the appeal record reflects the original transcript in this case was filed in the court of appeals on September 15, 1994, where appellants were granted at least five extensions to file a brief, the last of which was on November 6, 1995. On December 13, 1995, the court of appeals, giving no reason for doing so, certified this case to our court. Afterwards, on December 18, 1995, Hatch tendered the above motion in this court to supplement the record.

We return this matter to the court of appeals, noting first that Hatch cannot represent appellants Abel and Liberty Real Estate, and we direct the court of appeals to strike any motion(s) filed by Hatch on behalf of others. We also direct the appellate court to have appellants promptly file their briefs in this case and to dismiss appellants’ appeal if they fail to do so.

It is so ordered.