author: W.H. “Dub” Arnold, Chief Justice. David Newbern, Justice,

text:
    James Doyle BAILEY v. STATE of Arkansas
    CR 97-1442
    972 S.W.2d 239
    Supreme Court of Arkansas
    Opinion delivered July 9, 1998

      Etoch Law Firm, by: Louis A. Etoch, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly S. Terry, Ass’t Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

The appellant, James Doyle Bailey, was convicted in Monroe County Circuit Court of resisting arrest, disorderly conduct, and public intoxication, and was ordered to pay fines totaling $625.00. Among Mr. Bailey’s four arguments on appeal is his contention that the disorderly conduct statute, Ark. Code Ann. § 5-71-207 (Repl. 1997), is unconstitutional as written and as applied to him under the First Amendment of the United States Constitution. Thus, our jurisdiction is pursuant to Ark. Sup. Ct. 1-2(b)(3) and (b)(6) (1998). We find no merit to Mr. Bailey’s allegations of error and affirm the trial court’s judgment.

At approximately 12:30 a.m. on October 27, 1996, Mr. Bailey and his girlfriend, Brenda Brock, were involved in a one-vehicle accident near Mr. Bailey’s apartment in Brinkley. Shortly after the accident, Brinkley Police Officer Bill Geater went to Mr. Bailey’s residence to investigate a report of the wreck. He observed a damaged vehicle in the driveway and found Mr. Bailey sitting outside on the concrete steps leading up to the front porch of his apartment. Ms. Brock emerged from the residence at Officer Geater’s request, but went back inside when Arkansas State Trooper Ricky Newton arrived. Officer Geater followed her inside and brought her back out. According to Officer Geater, “Mr. Bailey was cussing me at this time. He was on the front porch. He mainly called me MF or SB. I asked him to be quiet.” In the meantime, Brinkley Police Officer Ed Randle had arrived. Officer Randle testified that, when he approached the steps, Mr. Bailey

stood up and grabbed me by the upper part of my arm, the biceps. Mr. Bailey said some profane things to me and told me to leave his friend alone. I told him to sit down and be quiet. He did sit down and be quiet.

Trooper Newton testified that the officers were tending to Ms. Brock when Mr. Bailey “starting getting belligerent.” Mr. Bailey “first said something in the form of ‘You all get the hell away from here and leave us alone.’” Trooper Newton, who observed that Mr. Bailey was intoxicated, responded by asking him to quiet down.

The officers took Ms. Brock to the street in front of Trooper Newton’s patrol car to examine her. According to Officer Geater, Mr. Bailey remained on the porch, but “continu[ed] to use profanity at us. I told him several times to be quiet and let us conduct our investigation.” Trooper Newton testified that Mr. Bailey stated at this point, “Fuck you, nigger, and fuck you, too.” Officer Randle testified that Mr. Bailey became “very loud and profane with his language.” It was Officer Geater’s testimony that, after telling him “eight or ten times to quiet down,” he walked up to Mr. Bailey and told him that he was under arrest for disorderly conduct and public intoxication.

Officer Geater instructed Mr. Bailey, who was sitting on the front steps, to stand up and put his hands on the banister. It was Officer Geater’s intention to place handcuffs on Mr. Bailey and pat him down to check for weapons. However, Mr. Bailey, who continued to direct profanity at the officers, “stiffened up and decided he wasn’t going to be cuffed.” Trooper Newton, who was dealing with Ms. Brock, came over to assist Officer Geater. According to Trooper Newton, Mr. Bailey had his right arm “in firm control where Officer Geater could not budge it.” Trooper Newton then put Mr. Bailey’s left arm in an arm lock behind his back. When Officer Geater still could not get Mr. Bailey’s right arm behind his back, Trooper Newton told Officer Geater that they needed to “take him to the ground.” Officer Randle then came over, held Mr. Bailey from behind, and used his foot to take him off his feet as the other two officers held his arms.

All four men fell to the ground, and Mr. Bailey still continued to struggle. He began to swing at the officers with his arms. At times, he would put his arms underneath his chest so that the officers could not handcuff them. When the officers were still unable to handcuff Mr. Bailey, Trooper Newton instructed the other two officers to “roll off” so that he could spray him with pepper spray. Trooper Newton used the pepper spray, and Officer Randle sprayed Mr. Bailey with a chemical foam. Neither chemical had effect on Mr. Bailey, who simply “shook his head like that and looked at us and said fuck you and came off the ground again.” After the officers put Mr. Bailey on the ground once more, he “was just flailing away with his arms.” This time, Trooper Newton used his police baton to try to pry Mr. Bailey’s right arm free so that it could be handcuffed. After Mr. Bailey’s right arm was finally secured, he was still “flaying away with his left arm trying to get back up.” After “a lot of wrestling and rolling around on the ground,” according to Officer Geater, they were finally able to handcuff Mr. Bailey.

The struggle continued, however, even after the officers placed the handcuffs on Mr. Bailey. When they tried to place him in the patrol car, he stood outside the door and refused to get in the car. After Officers Geater and Randle physically placed Mr. Bailey in the car, he attempted to kick the officers. After being transported to the Brinkley Police Department, Mr. Bailey was interviewed. A videotape of the exchange depicts Mr. Bailey shouting profanities at the officers, using such words as “motherfucker,” “asshole,” and “nigger.”

Mr. Bailey was charged by felony information with three counts of second-degree battery against a police officer, resisting arrest, interference with a law enforcement officer, disorderly conduct, and public intoxication. Prior to trial, the trial court dismissed two of the battery charges and the interference-with-a-law-enforcement-officer charge. Following a jury trial, the jury found Mr. Bailey not guilty of the remaining battery charge, but found him guilty of the resisting arrest, disorderly conduct, and public intoxication charges, for which the trial court imposed fines of $500.00, $75.00, and $50.00, respectively. Fie now appeals these convictions.

I. Sufficiency of the evidence resisting arrest and public intoxication

For his first allegation of error, Mr. Bailey essentially claims that the trial court should have directed a verdict on the resisting-arrest and public-intoxication charges because the State’s evidence was insufficient to support these claims. We will review the State’s evidence as it relates to each of these offenses under the following standards:

Motions for directed verdict are treated as challenges to the sufficiency of the evidence. Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the state. Dixon v. State, 310 Ark. 460, 470, 839 S.W.2d 173 (1992). Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. Only evidence supporting the verdict will be considered. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).

Lloyd v. State, 332 Ark. 1, 5, 962 S.W.2d 365 (1998); Green v. State, 330 Ark. 458, 466-7, 956 S.W.2d 849 (1997); McGehee v. State, 328 Ark. 404, 410, 943 S.W.2d 585 (1997).

Mr. Bailey claims that his resisting-arrest conviction cannot stand because the State failed to prove that he used physical force against the officers. The resisting-arrest statute is found at Ark. Code Ann. § 5-54-103 (Repl. 1997), and states in part that:

(a)(1) A person commits the offense of resisting arrest if he knowingly resists a person known by him to be a law enforcement officer effecting an arrest;
(2) “Resists”, as used in this subsection, means using or threatening to use physical force or any other means that creates a substantial risk of physical injury to any person. (Emphasis added.)

According to the plain language of subsection (a)(2), the actual use of physical force is only one way to “resist” under the statute. This subsection also provides that a person can threaten to use physical force and thus satisfy the “resist” element. Thus, Mr. Bailey’s contention that the State was required to prove that he actually used physical force is unpersuasive. While Mr. Bailey never punched or struck any of the officers, there was ample evidence indicating that he continuously struggled with them when they attempted to place handcuffs on him. He repeatedly swung at the officers and attempted to kick two of them even after he was finally handcuffed and placed in the patrol car. Under these circumstances, there was substantial evidence supporting Mr. Bailey’s conviction of resisting arrest.

Regarding the public-intoxication charge, Mr. Bailey argues that the State failed to prove that he was intoxicated. Particularly, he asserts that the officers at the scene never administered or attempted to administer a test to confirm that he was intoxicated. The statute at issue, Ark. Code Ann. § 5-71-212 (Repl. 1997), provides in relevant part that:

(a) A person commits the offense of public intoxication if he appears in a public place manifestly under the influence of alcohol or a controlled substance to the degree and under circumstances such that he is likely to endanger himself or other persons or property, or that he unreasonably annoys persons in his vicinity.

At trial, Mr. Bailey admitted that he had two drinks at a private club on the night of his arrest. Officer Geater testified that he thought Mr. Bailey was “extremely intoxicated” because he smelled of alcohol, had glassy, blurry, and watery eyes, and because of the way that he was acting. The officer’s opinion testimony was admissible to prove intoxication. Mace v. State, 328 Ark. 536, 540, 944 S.W.2d 830 (1997). In light of the testimony presented, there was substantial evidence supporting Mr. Bailey’s conviction for public intoxication. See, e.g., State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996).

II. Constitutionality of Ark. Code Ann. § 5-71-207 (Repl. 1997)

Next, Mr. Bailey contends that his conviction for disorderly conduct cannot stand because the statute under which he was convicted, Ark. Code Ann. § 5-71-207 (Repl. 1997), is unconstitutionally overbroad both as written and as applied to him. At the conclusion of all the evidence, the jury was instructed on the first three subsections of § 5-71-207, which provides:

(a) A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance, or alarm or recklessly creating a risk thereof, he:
(1) Engages in fighting or in violent, threatening, or tumultuous behavior; or
(2) Makes unreasonable or excessive noise; or
(3) In a public place, uses abusive or obscene language, or makes an obscene gesture, in a manner likely to provoke a violent or disorderly response . . .

The jury did not identify which subsection(s) it found to have been violated. However, it is apparent in his brief that Mr. Bailey is challenging subsection (a)(3), as he maintains that the disorderly conduct law violates his “First Amendment right to be critical of the governmental officers for conduct he believed to be inappropriate.”

Our review of challenges to the constitutionality of statutes begins with the principle that statutes are presumed to be constitutional. Arkansas Game & Fish Comm’n v. Murders, 327 Ark. 426, 429, 938 S.W.2d 854 (1997).The burden of proving a statute unconstitutional, we have said, is upon the party challenging it. Id. If it is possible to construe a statute as constitutional, we must do so. Id. An overbroad statute is one that is designed to punish conduct which the state may rightfully punish, but which includes within its sweep constitutionally protected conduct. Id.; McDougal v. State, 324 Ark. 354, 359-360, 922 S.W.2d 323 (1996) (citing 4 R. Rotunda & J. Novak, Treatise on Constitutional Law, § 20.8 (2d ed. 1992)).

In addressing Mr. Bailey’s facial challenge of § 5-71-207, our first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. Houston v. Hill, 482 U.S. 451, 458-9 (1987)(citations omitted). This requirement that the overbreadth be substantial arises from the United States Supreme Court’s recognition that the application of the overbreadth doctrine is “manifestly, strong medicine,” Broaderick v. Oklahoma, 413 U.S. 601, 613 (1973), and that “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on over-breadth grounds.” City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984). See also Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987). The doctrine of facial over-breadth should not be invoked “when a limiting construction has been or could be placed on the challenged statute.” Broaderick v. Oklahoma, supra. “[T]he right of free speech is not absolute at all times and under all circumstances.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942). In Chaplinsky, the United States Supreme Court explained that:

[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Id. at 571-572.

In support of his argument that the disorderly conduct statute is facially overbroad, Mr. Bailey relies on Houston v. Hill, supra, in which the United States Supreme Court struck down as facially overbroad a city ordinance that made it “unlawful for any person to ... in any manner oppose, molest, abuse, or interrupt any policeman in the execution of his duty.” 482 U.S. at 461. The First Amendment, the Court said, “protects a significant amount of verbal criticism and challenge directed at police officers.” Id. The Court further explained that it had invalidated laws that proscribe certain kinds of speech directed at police officers where the ordinance punishes spoken words and is not limited to “fighting words.” Id. at 462.

Subsection (a)(3) of the disorderly conduct statute proscribes speech and gestures, spoken in a public place, that are “abusive or obscene” and “likely to provoke a violent or disorderly response” from the listener. It requires “no great leap” for us to interpret the “likely to provoke a violent or disorderly response” language in subsection (a)(3) as incorporating the “fighting words” rule in Chaplinsky v. New Hampshire, supra. See United Food & Commercial Workers International Union v. IBP, Inc., 857 F.2d 434 (8th Cir. 1988). Because subsection (a)(3) proscribes only “fighting words,” this provision is distinguishable from the law struck down in Houston v. Hill, supra.

In any event, Mr. Bailey’s argument must inevitably fail because the disorderly conduct statute was properly applied to his conduct. While he refers us to his use of the words, “motherfucker,” “asshole,” and “nigger” during his taped interview at the police station, it was Mr. Bailey’s conduct at his residence that prompted his arrest for disorderly conduct. As Officer Geater testified, Mr. Bailey began to curse him, calling him “MF” or “SB” when he brought Ms. Brock out of the residence. At one point, according to Trooper Newton, Mr. Bailey stated, “Fuck you, nigger, and fuck you, too.” When Officer Randle arrived at the scene Mr. Bailey

stood up and grabbed me by the upper part of my arm, the biceps. Mr. Bailey said some profane things to me and told me to leave his friend alone. I told him to sit down and be quiet. He did sit down and be quiet. (Emphasis added.)

Not only did Mr. Bailey’s direct various fighting words to the officers, when considering his surrounding conduct, such as standing up and grabbing Officer Randle’s arm, we conclude that he used these words “in a manner likely to provoke a violent or disorderly response” under § 5-71-207(a)(3). Moreover, his act of standing up and grabbing Officer Randle’s arm in and of itself supported a conviction under subsection (a)(1), as this conduct constituted “threatening behavior.”

In addition, Mr. Bailey cannot challenge § 5-71-207 on the ground that it may conceivably be applied in hypothetical situations not before the court. McDougal v. State, 324 Ark. at 360. An appellant may challenge a law as being facially invalid only if he shows that the application of the law will restrict First Amendment rights. Id. (citing United States v. Salerno, 481 U.S. 739 (1986), New York v. Ferber, 458 U.S. 747 (1982), and R. Rotunda & J. Nowak, Treatise on Constitutional Law, supra). Mr. Bailey has made no such showing in this case. As the United States Supreme Court has held in United States v. Salerno, supra, “the mere fact that [a legislative] Act might operate unconstitutionally under some conceivable circumstances is insufficient to render it wholly invalid.” 481 U.S. at 745. For these reasons, we reject Mr. Bailey’s overbreadth challenge.

III. Jury instructions

Mr. Bailey further argues that the trial court erred in refusing to give the jury the following three instructions that he proffered:

FREEDOM OF SPEECH
The free communication of thoughts and opinions is one of the invaluable rights of man and shall not be abridged.
Authority: Constitution of the State of Arkansas, Article 2, Sect. 6 and the United States Constitution, Amendment One.
Defendant’s Proffered Jury Instruction No.l.
FREEDOM OF SPEECH
The free communication of thoughts and opinions is one of the invaluable rights of man.
Authority: Constitution of the State of Arkansas, Article 2, Sect. 6.
Defendant’s Proffered Jury Instruction No. 2.
FREEDOM OF SPEECH
An individual may not be punished for words or conduct that are simply annoying or offensive.
Authority: City of Houston, Texas v. Hill, 482 U.S. 451 (1987).
Defendant’s Proffered Jury Instruction No. 3.

On appeal, Mr. Bailey cites no case law or other authority to support his contention that the trial court erred in refusing to give these instructions to the jury. We have often stated that we will not consider an argument where the appellant presents no citation to authority or makes no convincing argument in support of his allegation of error, and it is not apparent without further research that the argument is well-taken. Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996). Mr. Bailey argues that the trial court’s rejection of his proffered instructions prejudiced him “because the jury was not allowed the option of finding that [his] criticism of the government police officers was constitutionally protected speech.” However, constitutional issues are questions of law for the court to resolve and not issues of fact to be submitted to the jury. See, e.g., Swindler v. State, 267 Ark. 418, 433, 592 S.W.2d 91 (1979), cert. denied, 449 U.S. 1057 (1980). Accordingly, the trial court did not err in refusing to give Mr. Bailey’s proffered instructions to the jury.

IV. Cross-Examination of Trooper Newton

Finally, Mr. Bailey contends that he was denied his right to effectively cross-examine Trooper Newton. Particularly, the trial court refused to allow Mr. Bailey to ask Trooper Newton whether he was transferred to Monroe County because he had left the scene of an accident involving his girlfriend. The relevant evidentiary rule at issue, A.R.E. 608(b), provides in pertinent part that:

[sjpecific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of a crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness . . .

We have interpreted this rule to permit inquiries into conduct on cross-examination that are clearly probative of truthfulness or untruthfulness, but to disallow cross-examination into specific instances that are merely probative of dishonesty. Laughlin v. State, 316 Ark. 489, 498, 872 S.W.2d 848 (1994). Specifically, we have adopted a three-part test of admissibility: (1) the question must be asked in good faith; (2) the probative value must outweigh its prejudicial effect; and (3) the prior conduct must relate to the witness’s truthfulness. Mackey v. State, 279 Ark. 307, 316, 651 S.W.2d 82 (1983). This test must be considered along with our settled law that evidentiary matters regarding the admissibility of evidence are left to the sound discretion of the trial court and rulings in this regard will not be reversed absent an abuse of discretion. White v. State, 330 Ark. 813, 819, 958 S.W.2d 519 (1997).

In the present case, we cannot say that the specific incident regarding Trooper Newton’s transfer because he left the scene of an accident involving his girlfriend automatically translates into an example of untruthfulness. In fact, Mr. Bailey does not allege that his questions were probative of Trooper Newton’s truthfulness. Accordingly, we conclude that the trial court did not abuse its discretion in refusing to allow Mr. Bailey to pursue this line of questioning.

Based on the foregoing, we affirm the trial court’s judgment.

Newbern and Imber, JJ., concur in part, dissent in part.

David Newbern, Justice,

concurring in part and dissenting in part. As applied in this case, Ark. Code Ann. § 5-71-207 (Repl. 1997) violates the First Amendment to the Constitution of the United States. Mr. Bailey’s conviction of disorderly conduct should be reversed. The majority correctly rejects Mr. Bailey’s challenge to the sufficiency of the evidence supporting his resisting-arrest and public-intoxication convictions and rejects his arguments concerning jury instructions and the cross-examination of Trooper Newton.

The jury received instructions on the disorderly conduct charge based upon the following three subsections of § 5-71-207:

(a) A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance, or alarm or recklessly creating the risk thereof, he:
(1) Engages in fighting or in violent, threatening, or tumultous behavior; or
(2) Makes unreasonable or excessive noise; or
(3) In a public place, uses abusive or obscene language, or makes an obscene gesture, in a manner likely to provoke a violent or disorderly response; ....

The verdict finding Mr. Bailey guilty of disorderly conduct did not specify the statutory ground or grounds on which it rested. We therefore can affirm Mr. Bailey’s disorderly conduct conviction only if each subsection is constitutional “on its face” and “as applied.” If, “in light of the instructions given by the trial judge, the jury could have rested its verdict on any of a number of grounds,” and if conviction on a particular ground “would violate the Constitution,” the conviction must be reversed even if it could have rested on a “severable and constitutional” ground. Bachellar v. Maryland, 397 U.S. 564, 569-70 (1970).

Conceding that the evidence was sufficient to support a disorderly conduct conviction on either subsection (a)(1) or (a)(2) of the statute, the question remains whether a conviction pursuant to (a)(3) would violate the First Amendment. That subsection prohibits a person “in a public place” from using “abusive or obscene language,” or making “an obscene gesture, in a manner likely to provoke a violent or disorderly response.” In response to Mr. Bailey’s charge that subsection (a)(3) is facially overbroad, the majority correctly holds that it must be construed as prohibiting only “fighting words” as that concept has been developed by decisions of the U.S. Supreme Court. As the Supreme Judicial Court of Maine has observed, “[a] narrow judicial interpretation of criminal statutes affecting speech is necessary in order to insure that they prohibit only speech which is not constitutionally protected.” State v. John W., 418 A.2d 1097, 1101 (Me. 1980). So construed, § 5-71-207(a) (3) survives Mr. Bailey’s facial-overbreadth challenge. Therefore, a conviction based on subsection (a)(3) would not be unconstitutional on account of overbreadth.

A conviction for disorderly conduct based upon § 5-71-207(a)(3) would, however, rest on “an unconstitutional ground,” Bachellar v. Maryland, 397 U.S. at 571, if that subsection, “as applied” to Mr. Bailey, punished him for engaging in speech short of “fighting words.” None of Mr. Bailey’s speech falls into that category. Therefore, if the jury convicted Mr. Bailey for disorderly conduct pursuant to § 5-71-207(a) (3), it necessarily convicted him for engaging in speech protected by the First Amendment.

The Supreme Court has directed that, “in cases raising First Amendment issues ... an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1038 (1991) (citations omitted).

The “requirement of independent appellate review ... is a rule of federal constitutional law.” .... This obligation rests upon us simply because the reaches of the First Amendment are ultimately defined by the facts it is held to embrace, and we must thus decide for ourselves whether a given course of conduct falls on the near or far side of the fine of constitutional protection.

Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557, 567 (1995)(citations omitted). See also Rankin v. McPherson, 483 U.S. 378, 386 n.9 (1987) (“The ultimate issue — whether the speech is protected- — is a question of law”); Bachellar v. Maryland, 397 U.S. at 566-67 (concluding, upon “independent examination of the whole record,” that wording on petitioners’ placards was not “fighting words”). We have followed this rule in resolving First Amendment issues raised in defamation cases. See, e.g., Thomson Newspaper Publishing, Inc. v. Coody, 320 Ark. 455, 461, 896 S.W.2d 897, 901 (1995).

A review of the “whole record” in this case shows that Mr. Bailey did not utter any “fighting words” that could have subjected him to punishment under § 5-71-207(a) (3) consistently with the First Amendment. “Fighting words” are words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Such language, in order to fall outside the protection of the First Amendment, must “have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed,” Gooding v. Wilson, 405 U.S. 518, 524 (1972), and it must produce a likelihood “that the person addressed would make an immediate violent response.” Id. at 528 (emphasis added). The Supreme Court has “consistently construed the ‘fighting words’ exception set forth in Chaplinsky narrowly.” R.A.V. v. St. Paul, 505 U.S. 377, 428 (1992)(Stevens, J., concurring in judgment). See also Diehl v. State, 451 A.2d 115, 120 (Md. 1982)(“Later decisions following Chaplinksy indicate the Supreme Court’s desire to limit the broad implications of the doctrine and to recognize that the use of an offensive expletive does not, by itself, deprive speech of protection”); 4 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 20.40, at p. 246 (2d ed. 1992)(stating Supreme Court “does not look with favor on prosecutions for ‘fighting words’”).

The majority opinion adequately conveys the abusive and offensive quality of the words used by Mr. Bailey in addressing Trooper Newton and Officers Geater and Randle. After listing some of the expletives, the majority concludes that Mr. Bailey “directed] various fighting words to the officers” and that, when considered together with “his surrounding conduct, such as standing up and grabbing . . . Officer Randle’s arm,” Mr. Bailey employed speech “in [a] manner likely to provoke a violent or disorderly response” (quoting § 5-71-207(a) (3)).

As “[t]he context of the utterance must first be examined to determine whether the words are truly ‘fighting words,’ ” People v. Prisinzano, 170 Misc.2d 525, 648 N.Y.S.2d 267, 273 (N.Y. City Crim.Ct. 1996); see also R.A.V. v. St. Paul, 505 U.S. at 432 (Stevens, J., concurring) (“Whether words are fighting words is determined in part by their context”), it is appropriate to review, as the majority opinion does, the words spoken by Mr. Bailey together with any accompanying physical movement. The key principle, however, is that fighting words “are punishable now not on a ‘per se’ basis but only when there is a likelihood of imminent disturbance.” Downs v. State, 278 Md. 610, 366 A.2d 41, 44 (1976).

Mr. Bailey’s speech did not include any “inherently” inflammatory words. For years, courts have observed that the “fighting words” doctrine has evolved to the point that we no longer have per se “fighting words.” See, e.g., R.I.T. v. State, 675 So.2d 97, 99 (Ala.Cr.App. 1995) (“Words must be evaluated in the era in which they are uttered — words that constitute fighting words change from generation to generation, or even more quickly”). Depending on all of the circumstances, what may be a fighting word in one case may not be one in the next.

In Cohen v. California, 403 U.S. 15 (1971), the Supreme Court held that the defendant had not used “fighting words” when he wore a jacket in a courthouse hallway with the inscription “Fuck the Draft” on the back. The Maryland Court of Appeals once observed that “the use of the word ‘fuck’ is not punishable in the absence of compelling reasons.” Diehl v. State, 451 A.2d at 122. Other cases are in accord. See, e.g., R.I.T. v. State, supra (juvenile’s statement, “fuck you,” to officer held not to be fighting words); State v. Creasy, 885 S.W.2d 829 (Tenn.Cr.App. 1994) (statement to officer that he was a “s — t-b—l,” “m-f— —,” and “s— of a b-” held not to be fighting words); Robinson v. State, 615 So.2d 112 (Ala.Cr.App. 1992)(statement to Officer Lewis, “Fuck R. Lewis,” held not to be fighting words); Buffkins v. City of Omaha, 922 F.2d 465 (8th Cir. 1990) (various uses of word “asshole,” when directed to officer, held not to be fighting words); In re Welfare of S.L.J., 263 N.W.2d 412 (Minn. 1978)(“fuck you pigs” to officers held not to be fighting words).

Even racial slurs are not “automatically” to be viewed as fighting words. In Downs v. State, supra, the defendant, while sitting in a restaurant within earshot of a uniformed State Trooper and a racially mixed clientele, remarked to his companions in a loud voice, “All the goddamn policemen in this County are no fucking good, they’re just after me. [T]he fucking niggers in this County are no better than goddamn policemen.” 366 A.2d at 42. The Court of Appeals of Maryland reversed the defendant’s conviction for disorderly conduct and held that the defendant’s speech could not be constitutionally punished as “fighting words.” The Court noted that, even if others in the restaurant had been “offended” by the speech, “there was no evidence that any person was so aroused as to respond in a violent manner.” 366 A.2d at 46.

Mr. Bailey used almost every expletive imaginable at his residence and at the station following his arrest, but the record is devoid of any testimony that the officers, or anyone else who might have been present at either scene, were likely to respond with immediate violence.

While at Mr. Bailey’s residence, the officers responded to his remarks by requesting him to be quiet and allow them to conduct their investigation. The officers never suggested in their testimony that Mr. Bailey’s tirade incited, or was even likely to incite, them to violence. Even when Mr. Bailey grabbed Officer Randle’s arm, the officer responded not with violence but by instructing Mr. Bailey “to sit down and be quiet,” a directive with which Mr. Bailey immediately complied. Mr. Bailey was not arrested in response to his physical movement against Officer Randle. Rather, it was Mr. Bailey’s continuous use of profanity, in spite of the officers’ request to be quiet, that prompted Officer Geater to arrest Mr. Bailey for disorderly conduct.

Mr. Bailey also used profanity at the police station, but, again, there is no testimony to suggest that his speech tended to incite potential listeners to respond immediately with violence. To the contrary, the record shows that the officers were amused by Mr. Bailey’s invective.

In addition, nothing in the record suggests that Mr. Bailey was closely situated to the officers during his verbal assault. Courts have held that speech cannot be classified as “fighting words” unless the defendant and the person he or she is addressing are closely situated to one another and are essentially “face to face.” People v. Prisinzano, 648 N.Y.S.2d at 272 and 274 n.3 (stating “the courts which have examined the face-to-face requirement have interpreted it as calling for extremely close physical proximity”)(citing Hershfield v. Commonwealth, 14 Va.App. 381, 383-385, 417 S.E.2d 876, 878 (1992); Garvey v. State, 537 S.W.2d 709, 711 (Tenn.Crim.App. 1975)). As the Supreme Judicial Court of Maine has observed, “‘fighting words’ implies a direct, face-to-face confrontation and provocation . . . .” State v. John W., 418 A.2d at 1105-06.

Mr. Bailey’s arrest occurred as he was addressing the officers, located on the street, from the steps of his front porch. No evidence suggests that there was a face-to-face encounter.

Finally, it is important to consider the people to whom Mr. Bailey directed his remarks — police officers. As Justice Powell suggested in his concurring opinions in Lewis v. City of New Orleans, 408 U.S. 913 (1972)(“Lewis I”), and 415 U.S. 130 (1974) (“Lewis II”), “a properly trained officer may reasonably be expected to ‘exercise a higher degree of restraint’ than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.’” Lewis II, 415 U.S. at 135 (Powell, J., concurring). Justice Powell’s opinion was quoted favorably by the Supreme Court more recently in Houston v. Hill, 482 U.S. 451, 462 (1987), and has been approved by the courts of other states, see State v. John W., 418 A.2d at 1104; City of Toledo v. Grince, 48 Ohio App.3d 126, 548 N.E.2d 999, 1002 (1989)(“It is not unreasonable to expect that a police officer should be able to withstand such insults without retaliating”); as well as by the drafters of the Model Penal Code. See American Law Institute, Model Penal Code and Commentaries § 250.2, Comment 7, at pp. 349-53 (1980). Other courts, however, have declined to adopt any rule that would alter the “fighting words” analysis on the basis that the addressee is a police officer. See, e.g., Commonwealth v. Hock, 696 A.2d 225 (Pa.Super. 1997). A police officer’s background and training are at the very least factors relevant in determining whether speech qualifies as “fighting words.”

Law-enforcement officers, while “hard-working” and deserving of “better treatment from members of the public,” still must endure a fair amount of speech that is “boorish, crass, and initially, at least, unjustified.” Duran v. City of Douglas, Ariz., 904 F.2d 1372, 1377 (9th Cir. 1990). Such conduct on the part of an individual is “disgraceful,” but “it [is] not illegal; criticism of the police is not a crime.” Id. (citing Houston v. Hill, supra).

Mr. Bailey clearly acted disgracefully toward the officers on the scene, but absent testimony to show that the officers were likely to respond to Mr. Bailey’s speech with immediate violence, the First Amendment requires that we reverse the conviction for disorderly conduct.

I respectfully dissent.

Imber, J., joins in this dissenting opinion.


source: Caselaw Access Project

author: W.H. “Dub” Arnold, Chief Justice. Donald L. Corbin, Justice,

license: Public Domain

text:
    The CLIFFORD FAMILY LIMITED LIABILITY COMPANY, a Kansas Corporation, Mike D. Clifford, President and General Manager v. Donald COX and Lucille M. Cox, Husband & Wife
    98-283
    971 S.W.2d 769
    Supreme Court of Arkansas
    Opinion delivered July 9, 1998
    [Petition for rehearing denied September 10, 1998.]

      Matthews, Campbell, Rhoads, McClure & Thompson, P.A., by: Edwin N. McClure, for appellants.

      Hyden, Miron & Foster, PLLC, by: James W. Hyden, for appellees.

       Corbin, J., would grant.

   W.H. “Dub” Arnold, Chief Justice.

This appeal involves protective covenants and arises from an order of the Benton County Chancery Court denying the request of the appellant, the Clifford Family Limited Liability Company, through Mike D. Clifford, the company’s president and general manager (“the Cliffords”), for injunctive relief. The Cliffords assert that the chancellor erred in refusing to require appellees Donald Cox and Lucille M. Cox (“the Coxes”) to remove a deck that they constructed on their property. The Arkansas Court of Appeals affirmed the chancellor’s decision based on the authority of Stuttgart Electric v. Riceland Seed, 33 Ark. App. 108, 802 S.W.2d 484 (1991). Clifford Family Liability Company v. Cox, CA97-516 (Ark. Ct. App. Feb. 11, 1998). We granted review of that decision pursuant to Ark. Sup. Ct. R. 1-2(f), and consider this case as though it were originally filed in this court. Thompson v. State, 333 Ark. 92, 96, 966 S.W.2d 901 (1998). For the reasons set forth below, we reverse and remand the chancellor’s decision.

The parties are owners of adjoining lots in the Jarvis Acres Subdivision in Benton County. At the time the Coxes purchased their lot, they were aware that the land was encumbered by protective covenants, which included the following:

5. No building shall be located on any tract nearer than 25 feet to the front tract line or nearer than 50 feet to any side street line, or nearer than 50 feet to any interior tract line.

The Coxes began constructing a house on their lot in September or October of 1995. According to the Cliffords, they learned in December 1995 that the Coxes’ unfinished deck extended beyond the fifty-foot setback to an interior tract line in violation of paragraph five. In January of 1996, the Cliffords obtained a survey for verification. Thereafter, they wrote the Coxes a letter in which they asked them what they planned to do about the violation of the covenants. The Coxes did not respond to the letter, but contacted the Cliffords on three separate occasions offering to purchase their property. The Cliffords declined, and on May 1, 1996, filed their complaint asking that the chancellor enter an order requiring the Coxes to remove their deck.

At a September 30, 1996 hearing, the chancellor heard testimony from both parties. Mr. Cox stipulated that his deck extended some seventeen feet onto the setback. Robert Cox, who built his brother’s deck, explained that he “was trying to get the [Coxes] the best view of the lake I could.” At the conclusion of the hearing, the chancellor concluded that the deck encroached upon the setback in violation of the protective covenants. The chancellor allowed the parties thirty days to file briefs on the issue of an appropriate remedy.

On November 4, 1996, the Cliffords filed a petition for hearing, alleging that, since the September 30, 1996, hearing in which the chancellor had found that the Coxes had violated the protective convenants, the Coxes had built onto their existing deck by adding a landing and stairs. On December 13, 1996, the chancellor conducted a second hearing in the matter. During the hearing, Mr. Cox explained that, “[i]n order to have access to the hot tub, I went ahead and added that much of a deck with just steps around it.” He admitted that, in building this addition, he knew that he was doing so in the setback. At the conclusion of the hearing, the chancellor stated that he had visited the properties in question and “was unable to discern any interference” with the Cliffords’ enjoyment of their property. Relying on Stuttgart Electric v. Riceland Seed, 33 Ark. App. 108, 802 S.W.2d 484 (1991), the chancellor concluded that the removal of the deck “would be a harsh, drastic and totally inequitable remedy.”

In their petition for review, the Cliffords argue that the Court of Appeals’ decision in Stuttgart Electric v. Riceland Seed, supra, conflicts with this court’s holding in Hays v. Watson, 250 Ark. 589, 466 S.W.2d 272 (1971). The subject of the Stuttgart Electric case was Riceland Seed’s warehouse, which encroached Stuttgart Electric’s land by 2.3 feet. In affirming the chancellor’s decision denying Stuttgart’s request to require Riceland to remove its warehouse, the Court of Appeals observed the chancellor’s findings of fact that the encroachment was slight at only 2.3 feet and was not done intentionally; that Stuttgart had constructed a drainage pipe that encroached onto Riceland’s property; and that removal of the warehouse would cost Riceland $10,000.00. Relying on the Restatement of Torts’ general discussion regarding injunctions, the Court of Appeals held:

We think the law, as indicated by the authorities . . ., holds that the right to an injunction requiring the removal of encroaching buildings upon the property of others is governed by equitable principles.

Stuttgart Electric, 33 Ark. App. at 114. In Hays v. Watson, supra, this court affirmed the chancellor’s decision ordering removal of a sewer system constructed on two lots in a subdivision where protective covenants indicated that the lots were to be used for residential purposes. Recognizing the doctrine of strict construction, this court stated that, when the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed, and it is improper to inquire into the surrounding circumstances or the objects and purposes of (the restriction for aid in its construction. Hays, 250 Ark. at 595. This court further explained that the strict rules of construction shall not be applied in such a way as to defeat the plain and obvious purpose of the restriction. Id.

We try chancery cases de novo on the record, but do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Barber v. Watson, 330 Ark. 250, 253, 953 S.W.2d 579 (1997); Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). In order to demonstrate that the chancellor’s ruling was erroneous, the Cliffords must show that the trial court abused its discretion by making a judgment call that was arbitrary or groundless. Id. The Cliffords rely on this court’s decision in Hays v. Watson, supra, a 1971 case. However, we have discussed our guidelines regarding land restrictions more recently in Barber v. Watson:

Courts do not favor restrictions upon the use of land; if such restrictions exist, they must be clearly apparent. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996); McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988). The general rule governing the interpretation, application, and enforcement of restrictive covenants is the intention of the parties as shown by the covenant. Holaday, 323 Ark. 522, 920 S.W.2d 4. Where, however, the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed, so long as the meaning does not defeat the plain and obvious purpose of the restriction. Id. (citing Hays v. Watson, 250 Ark. 589, 466 S.W.2d 272 (1971)). Where no general plan of development exists, restrictive covenants contained in a bill of assurance are not enforceable. McGuire, 297 Ark. 282, 761 S.W.2d 904.

Barber v. Watson, 330 Ark at 254. While the chancellor relied on the general equitable principles recited in Stuttgart Electric v. Riceland Seed, supra, we conclude that our more specific rules relating to restrictive covenants govern the case at bar.

It appears undisputed that a general plan of development existed in Jarvis Acres. In this case, the language in paragraph five is clear that “[n]o building shall be located . . . nearer than 50 feet to any interior tract fine.” When the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed. See Barber v. Watson, supra. We have further held that, parties who take title to land with notice that it is subject to an agreement restricting its use will not, in equity and good conscience, be permitted to violate its terms. Holaday v. Fraker, supra (citing Harbour v. Northwest Land Co., 284 Ark. 286, 681 S.W.2d 384 (1984)). Because the language of paragraph five is clear, the chancellor erred in examining the respective properties to determine whether the encroachment by the Coxes caused any interference with the Cliffords’ enjoyment of their land. Where the language of the restriction is clear, it is improper to inquire into the surrounding circumstances or the objects and purposes of the restriction for aid in its construction. Hays v. Watson, 250 Ark. at 595. Under these circumstances, we hold that the chancellor’s findings and conclusions were an abuse of discretion; therefore, the case is remanded for the chancellor to enforce the covenant by requiring the removal of the encroachment.

Reversed and remanded.

Corbin and Thornton, JJ., dissent.

Donald L. Corbin, Justice,

dissenting. Appellant asks this court to reverse the chancellor’s ruling and strictly enforce the provisions of the protective covenant, without regard to the relative hardships to either party. The majority reverses the chancellor’s decision on the ground that the terms of the protective covenants are unambiguous and, thus, must be strictly enforced. While I do not take issue with the majority’s recitation of the general law on restrictive or protective covenants, I do not agree that every violation of a protective covenant mandates an injunction requiring removal of the offensive structure. Furthermore, I especially do not agree with the implication of this decision, that the chancellor, presiding over a court of equity, erred in balancing the equities and considering the relative hardships to the parties in this suit. Therefore, I respectfully dissent.

Appellant brought this suit in chancery court seeking an injunction to have the Appellees’ deck removed because it is located within the fifty-feet setback, in violation of the protective covenants. Appellant asked only that the deck be removed, although approximately two feet of the house itself is located in the setback area. Appellant has been damaged in no way, shape, or form, nor does he even claim to be.

I believe the chancellor did all that he could to appropriately remedy this situation, conducting two hearings on the matter, reviewing the documents in question, and visiting the property. The chancellor ruled that from his inspection of the property, he was unable to discern any interference with Appellant’s enjoyment of his property caused by Appellees’ deck. The chancellor ruled further that Appellant did not plead or prove any damages. The chancellor thus denied the requested injunction based on the fact that Appellant had not suffered any damage as a result of the location of the deck, reasoning:

As we know, in this case, [Appellees’] structure does not encroach upon [Appellant’s] land. A grant of mandatory injunction would have to be based solely on the fact that the covenants were breached.
I am of the opinion that removal of the deck would be a harsh, drastic and totally inequitable remedy.

The chancellor did, however, award Appellant $2,500 in attorney’s fees and costs. The chancellor relied on the holdings in Stuttgart Elec. Co., Inc. v. Riceland Seed Co., 33 Ark. App. 108, 802 S.W.2d 484 (1991), and Turpin v. Watts, 607 S.W.2d 895 (Mo. App. 1980), in support of his conclusion. I believe those holdings are sound.

In Stuttgart, 33 Ark. App. 108, 802 S.W.2d 484, the plaintiff filed suit for injunction to require the defendant to remove a portion of its warehouse that encroached upon the plaintiff s property by 2.3 feet. The chancery court denied the requested relief, finding, among other things, that the encroachment by the warehouse was slight and was not done intentionally, and that removal of the building would be a harsh, drastic, and totally inequitable remedy. Relying on the Restatement (Second) of Torts, the court of appeals opted for a remedy that would balance all the equities and measure the “relative hardship” that would come to both parties:

Elementary justice requires consideration of the hardship the defendant would be caused by an injunction as compared with the hardship the plaintiff would suffer if the injunction should be refused. Though the expression “balance of convenience” is sometimes used to designate the weighing process here involved, it does not state the proper test. ... It cannot be summed up in any phrase less elastic than “relative hardship.”
In its broader aspects, the problem may be viewed as one of balancing all of the equities of the situation. This process first involves consideration of the relative hardships of the two parties; but it extends beyond hardships to other factors, such as the character of the conduct (including the respective motives) of the defendant and the plaintiff that produced the situation and created the attendant hardships.

Id. at 114-15, 802 S.W.2d at 488 (quoting Restatement (Second) of Torts § 941 (1977)) (emphasis added). That decision is consistent with this court’s recognition of the chancellor’s duty to decide the credibility of the witnesses, weigh the evidence, and balance the equities. See Blevins v. Wagnon, 281 Ark. 272, 664 S.W.2d 198 (1984).

In Turpin, 607 S.W.2d 895, the Missouri Court of Appeals, Southern District, addressed a factual situation more closely akin to the situation here. There, the plaintiff and the defendant were neighbors in a lakefront subdivision. The plaintiff filed suit for injunction against the defendant, contending that the defendant had violated the provision of the restrictive covenants prohibiting any building within the setback adjoining the lake. The plaintiff claimed that the defendant’s house was within the setback area and that it was obstructing the plaintiff’s view of the lake. The Missouri court held:

More importantly, the relief sought is wholly disproportionate to the injury sustained. Whatever status one accords the testimony of defendant’s surveyor, it is clear that the obstruction of plaintiffs “view” is minimal. To compel the defendant to raze and reconstruct his residence at a cost of nearly $39,000 so plaintiff might enjoy an unobstructed view of the lake would be manifestly inequitable. Relief was rightfully refused upon this ground, if no other.

Id. at 901-02 (citations omitted) (emphasis added). I concur with the reasoning employed by the Missouri Court of Appeals, which is applicable to the facts of this case.

Here, Appellant and Appellees own neighboring lakefront property. Appellant filed this suit requesting injunction because Appellees violated the terms of the protective covenants pertaining to building in the setback area of the land. Unlike the present case, however, the plaintiff in Turpin at least claimed to be damaged by the location of the defendant’s house. Still, the court found that the grant of an injunction requiring the defendant to remove the house would be inequitable.

In Hays v. Watson, 250 Ark. 589, 466 S.W.2d 272 (1971), relied upon heavily by Appellant, the defendant Hays maintained a trailer park on land adjoining Watson’s subdivision. Hays purchased lots 3 and 4 from Watson and, immediately thereafter, started construction of a sewage disposal system, which would service forty-five trailer spaces. Watson filed suit against Hays, alleging that Hays had violated the terms of the restrictive covenants for the subdivision. The chancellor ruled in favor of Watson and ordered that Hays restrict the use of his sewage disposal system to a single-dwelling unit, as set out in the covenants. The chancellor observed that, although proof of damages was not necessary to obtain an injunction, Watson was being damaged by the location of the sewage disposal system, as he had been unable to sell any additional lots since construction of the sewage system had begun.

Here, unlike the plaintiff in Hays, Appellant has not been damaged. There was no testimony that the location of Appellees’ deck affected Appellant’s use and enjoyment of his property, or that it lowered the value of his property. Moreover, Appellees’ deck is not encroaching onto Appellant’s property; rather, the deck occupied approximately seventeen feet of land in the setback area. Appellant did not plead or allege that he had been damaged by Appellees’ construction of their deck. Given the lack of harm to Appellant, the holding in Hays is distinguishable.

In conclusion, I believe that the chancellor fulfilled his duty by weighing the evidence, determining the credibility of the witnesses, and balancing the equities and relative hardships involved. While there is no question that the covenants were violated, I disagree that the only remedy available in such a situation is a mandatory injunction for removal of the structure. Accordingly, given the total absence of harm or injury to Appellant, I would affirm the chancellor’s conclusion that forcing Appellees to remove the deck would be unjust under the circumstances.

Thornton, J., joins in this dissent.


text:
    Cheryl YOUNGMAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    97-1563
    971 S.W.2d 248
    Supreme Court of Arkansas
    Opinion delivered July 9, 1998
    [Petition for rehearing denied September 10, 1998.]

      Grisham A. Phillips and Curtis E. Rickard, for appellant.

      Boswell, Tucker, Brewster & Hicks, by: Clark S. Brewster, for appellee.

       Corbin, J., would grant.

   W.H. “Dub” Arnold, Chief Justice.

Appellant, Cheryl Youngman, brings the instant appeal challenging the Saline County Circuit Court’s grant of appellee, State Farm Mutual Automobile Insurance Company’s summary-judgment motion. Our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule 2-4 (1998). Youngman contends that the specific points raised on appeal involve issues of substantial public interest, which need clarification or development of the law or overruling of precedent, specifically, M.F.A. Mutual Ins. Co. v. Wallace, 245 Ark. 230, 431 S.W.2d 742 (1968). Finding no reversible error, we affirm the trial court’s grant of summary judgment in favor of appellee.

I. Facts

The facts in this case are undisputed. On August 13, 1995, Youngman, a passenger in her mother’s pick-up truck, rode south on Highway 67, near the highway’s intersection with River Road. Preston O. Whitney, traveling in the opposite direction, lost control of his car and drove across the highway centerline, striking the pick-up truck. Following the accident, Youngman sought recovery for her injuries from Whitney, an uninsured motorist, and from Nationwide Insurance Company and the appellee, State Farm.

Two distinct written agreements are of significance in this appeal. First, Youngman’s mother insured her pick-up truck via a Nationwide Insurance Company policy that provided uninsured-motorist bodily-injury coverage in the amount of $25,000 per person and $50,000 per accident. The parties agree that the Nationwide policy provided the primary uninsured-motorist coverage. Second, Youngman had a policy of liability insurance with the appellee, State Farm. Like the Nationwide policy, the State Farm policy provided for uninsured-motorist bodily-injury coverage in the amount of $25,000 per person and $50,000.00 per occurrence.

However, the State Farm policy contained an “other-insurance” or “excess-escape” clause, authorizing State Farm to pay uninsured benefits only to the extent that the State Farm policy limit exceeded the primary coverage, here, the Nationwide policy. Specifically, the relevant portion of the State Farm policy states:

If There Is Other Uninsured Motor Vehicle Coverage
3. If the insured sustains bodily injury while occupying a vehicle not owned by you, your spouse or any relative, this coverage applies:
a. as excess to any uninsured motor vehicle coverage which applies to the vehicle as primary coverage, but
b. only in the amount by which it exceeds the primary coverage.

Additionally, “relative” is defined as “a person related to you or your spouse by blood, marriage or adoption who lives with you.” Notably, appellant’s mother, the pick-up truck driver, did not live with Youngman and was not a “relative” under the policy.

Prior to Youngman’s suit in the circuit court, Nationwide paid her its policy’s limit of $25,000 in uninsured-motorist benefits. Subsequently, she sought to recover $25,000 in uninsured-motorist benefits under the State Farm policy. State Farm moved for summary judgment on the basis of its other-insurance clause, and, in an order filed January 21, 1997, the trial court granted State Farm’s motion. However, in a judgment filed February 14, 1997, the trial court awarded Youngman damages of $69,193.94, an amount in excess of both insurance policies’ limits, to be payable by Whitney, the uninsured motorist. Youngman was also awarded ten percent interest and costs.

Youngman then appealed the trial court’s order granting State Farm’s summary-judgment motion. In an unpublished opinion dated December 17, 1997, the Court of Appeals affirmed the summary-judgment grant, relying primarily on the authority of a Court of Appeals decision involving language nearly identical to State Farm’s other-insurance clause. See State Farm Fire & Casualty Co. v. Amos, 32 Ark. App. 164, 798 S.W.2d 440 (1990). Moreover, noting the necessity of following precedent, the appellate court reasoned that when an insurance policy provision is in accord with the uninsured-motorist insurance statute, the provision cannot be contrary to public policy. See Aetna Ins. Co. v. Smith, 263 Ark. 849, 568 S.W.2d 11 (1978).

II. Petition for review

From the Court of Appeals’ decision, we granted Youngman’s petition for review. When we grant a petition to review a case decided by the Court of Appeals, we review it as if it was originally filed in this Court. Malone v. Texarkana Public Schools, 333 Ark. 343, 969 S.W.2d 644 (1998) (citing Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997)). On appeal, we consider the trial court’s grant of State Farm’s summary-judgment motion.

III. Summary-judgment motion

Youngman’s sole point on appeal contests the trial court’s grant of State Farm’s motion for summary judgment. In reviewing summary-judgment cases, this Court need only decide if the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Further, the moving party always bears the burden of sustaining a motion for summary judgment. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56 (1998); Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners, 332 Ark. 450, 966 S.W.2d 241 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)).

The parties agree that there are no disputed facts. Accordingly, our review must focus on the trial court’s application of the law to those undisputed facts. Significantly, appellant concedes that under our current case law, she cannot recover benefits from State Farm. Additionally, she concedes that both this Court and the Court of Appeals have addressed, on several occasions, the precise issue of the validity of other-insurance clauses, have decided the issue adversely to the appellant, and that the law is well settled. Nevertheless, Youngman disagrees with the trial court’s reliance on case law following the position this Court adopted in M.F.A. Mutual Ins. Co. v. Wallace, 245 Ark. 230, 431 S.W.2d 742 (1968). She suggests that the Wallace decision reflects a now minority-jurisdiction position. On the other hand, State Farm argues that our case law is controlling precedent, that the appellant has raised no issue of first impression justifying a break from that precedent, and that we should affirm. We agree.

We are bound to follow prior case law under the doctrine of stare decisis, and that policy is designed to lend predictability and stability to the law. State of Arkansas Office of Child Support Enforcement v. Mitchell, 330 Ark. 338, 343, 954 S.W.2d 907 (1997) (citing Parish v. Pitts, 244 Ark. 1239, 1252, 429 S.W.2d 45, 52 (1968) (superseded by statute on other grounds)). In Parish v. Pitts, this Court held that “[precedent governs until it gives a result so patendy wrong, so manifestly unjust, that a break becomes unavoidable.” Mitchell, 330 Ark. at 343 (quoting Parish, 244 Ark. at 1252). Our test is whether adherence to the rule would result in “great injury or injustice.” Mitchell, 330 Ark. at 343 (quoting Independence Fed. Bank v. Webber, 302 Ark. 324, 331, 789 S.W.2d 725, 730 (1990)). The instant facts do not warrant such a break from precedent.

In Wallace, this Court held that other-insurance clauses, which prevent the stacking of multiple uninsured-motorist policies, are not repugnant to our state statute requiring uninsured-motorist coverage. This Court also noted that our uninsured-motorist coverage act, now codified at Ark. Code Ann. § 23-89-403 (Supp. 1997), was not designed to provide an insured with greater protection than would have been available had the insured been injured by a driver with a policy containing the minimum statutory limits required by the act. Specifically, section 23-89-403(a)(1) provides:

No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto and is not less than limits described in § 21-19-605, . . . ,for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.

(Emphasis added.) Section 27-19-605 requires minimum coverage of $25,000 per person and $50,000 per accident. Here, both the Nationwide and State Farm policies provided coverage consistent with the requirements of sections 23-89-403 and 27-19-605.

Shortly after the Wallace decision, this Court upheld an other-insurance clause in Harris v. Southern Farm Bureau Casualty Ins. Co., 247 Ark. 961, 448 S.W.2d 652 (1970). In Harris, this Court acknowledged that Wallace was controlling precedent and reasoned that courts may not expand contracts beyond their terms and the parties’ intent. Here, the parties agree that State Farm’s other-insurance clause is unambiguous and identical to the clauses previously upheld by this Court.

The principle established in Wallace, upholding other-insurance clauses, has been followed most recendy in State Farm Fire & Casualty v. Amos, 32 Ark. App. 164, 798 S.W.2d 440 (1990), where the Court of Appeals found that the injured-insured was not entitled to recover $25,000 in uninsured coverage under the driver’s insurance policy after she had already recovered $50,000 from the primary insurer that had insured the vehicle. Like the instant case, Amos involved an unambiguous, other-insurance clause.

In State Farm Mut. Auto. Ins. Co. v. Beavers, 321 Ark. 292, 901 S.W.2d 13 (1995), we considered a first-impression issue of stacking uninsured and wndefinsured motorist coverages. Notably, this Court utilized a simple rule, suggested in a law review article, to analyze almost any stacking problem: “Read the Statute and Read the Policy!” Beavers, 321 Ark. at 295 (citing Douglass and Telegadis, Stacking of Uninsured and Underinsured Motor Vehicle Coverages, 24 U. Rich. L. Rev. 87 (Fall 1989)). Applying that rationale here, the State Farm other-insurance clause contains unambiguous language that limits State Farm’s liability to any amount in excess of the primary coverage.

We have consistently held that other-insurance clauses are consistent with the purposes of our uninsured-motorist statute. Recall that the purpose of section 23-89-403 is to put the injured party in as good a position as it would have been in had the uninsured motorist been minimally insured as required by the statute. Here, appellant merely relies on persuasive authority from other jurisdictions to support overruling our existing case law. She cites Widiss, Uninsured and Underinsured Motorist Insurance, Sec. 13.4, p. 563 (2d Ed. 1992), for the proposition that Arkansas’ acceptance of other-insurance clauses is “clearly a minority view.” According to Widiss, thirty-six states have rejected other-insurance clauses on a variety of bases.

In any event, based upon the controlling authority of Wallace and its progeny, there are no grounds to reverse the trial court’s grant of summary judgment and to depart from our precedent. Viewing the evidence in the light most favorable to Youngman, resolving any doubts against State Farm, and acknowledging that there is no genuine issue as to any material fact, the trial court did not err in finding that State Farm was entitled to a judgment as a matter of law. Accordingly, we affirm.

Glaze, Corbin, and Thornton, JJ., dissent.

Donald L. Corbin, Justice,

dissenting. Appellant Cheryl Youngman asks this court to reconsider its longstanding common-law rule against the stacking of multiple uninsured-motorist insurance policies. Appellant concedes that this court’s previous holdings on this issue, beginning with M.F.A. Mut. Ins. Co., Inc. v. Wallace, 245 Ark. 230, 431 S.W.2d 742 (1968), are “stacked” against her, yet she asks us to revisit that rule. The majority refuses to do so, and for that reason, I respectfully dissent.

Appellant contends that this court should revisit this issue, given that the overwhelming majority of states now embrace the notion that an injured insured should be entitled to collect on multiple uninsured-motorist policies in order to fully compensate or indemnify the insured. See Alan I. Widiss, Uninsured and Underinsured Motorist Insurance § 13.6 (1990). She argues that such reasoning is applicable here, as the total damages awarded by the trial court were over $69,000 and her compensation from the uninsured coverage was a mere $25,000. She asserts that she is not looking for a windfall or looking to double her recovery; rather, she asks only to be compensated as fully as possible under both policies, as both policies had been paid for and were current.

This court should reconsider its position, first announced in Wallace, 245 Ark. 230, 431 S.W.2d 742, that “anti-stacking” or “other-insurance” clauses pertaining to uninsured-motorist coverage are not repugnant to this State’s Uninsured Motorist Act or public policy. I, for one, believe that it is time to shed this common-law rule in favor of one that allows the insured to recover for the full amount of his or her injuries to the extent that any applicable uninsured-motorist insurance coverages provide. Indeed, this court has recognized that the purpose of the Uninsured Motorist Act is to protect the insured, not the insurer, and thus preclude any windfall to the insurer by a reduction in benefits. Hawkins v. State Farm Fire & Cas. Co., 302 Ark. 582, 792 S.W.2d 307 (1990). See also Travelers Ins. Co. v. Nat’l Farmers Union, 252 Ark. 624, 480 S.W.2d 585 (1972). Such coverage is for the specific purpose of protecting the insured from financially irresponsible motorists. Pardon v. Southern Farm Bureau Cas. Ins. Co., 315 Ark. 537, 868 S.W.2d 468 (1994).

Moreover, when an insured purchases such coverage, he or she pays an added premium for such coverage. According to this court’s decisions enforcing other-insurance clauses, however, he or she may be entitled to recover under such added coverage only in certain circumstances. In other words, the added premium is consistently being paid, but the coverage is less than consistently being provided. Should the insurers continue to benefit from receiving premium payments from their respective clients, only to deny payment of coverage to the clients where another insurer has already paid? It seems to me that, while we have gone out of our way to avoid giving a windfall to the insured, we have inadvertently provided a windfall to the insurers, by allowing them to benefit from the payment of additional premiums for uninsured-motorist coverage. Such windfall was never intended by the Uninsured Motorist Act. See Hawkins, 302 Ark. 582, 792 S.W.2d 307.

On the subject of other-insurance clauses, Professor Widiss has written:

It is true, as some insurers have argued, that when the prorata provision of the Other Insurance clause [is] not enforceable, an insured who is covered by more than one uninsured motorist coverage is better off being injured by an uninsured motorist than being injured by a negligent motorist carrying the minimum coverage specified by the financial responsibility laws. The conclusion which many insurance companies draw from this fact that they should be allowed to reduce their liability does not necessarily follow. A premium has been paid for each of the coverages and the insurance policy has been issued. It seems both equitable and desirable to permit recovery under more than one coverage until the claimant is fully indemnified. . . .
The Other Insurance provision should be modified to extend the uninsured motorist coverage in multiple coverage situations when a claimant has not been fully indemnified. To the extent that risk is thereby increased, companies can seek an increase in their premiums.

Widiss, Uninsured and Underinsured Motorist Ins. § 13.6 (emphasis added). I agree with Professor Widiss’s recommendation.

In my dissent in Clampit v. State Farm Mut. Auto. Ins. Co., 309 Ark. 107, 828 S.W.2d 593 (1992), I stated that I believed that anti-stacking (or other-insurance) clauses pertaining to underinsured-motorist coverage deny Arkansas policyholders their reasonable expectations of full compensation, and that such clauses accordingly violate public policy. I further believe that such clauses pertaining to uninsured-motorist coverage are equally violative of public policy, as they, too, deny policyholders their expectations of being fully compensated in the event they are injured by the actions of an uninsured motorist. I do not believe, however, that recovery under more than one policy should actually enrich or benefit an insured beyond his or her injuries.

In the present case, there is no danger of Appellant receiving a windfall or double recovery, as the limits of both uninsured policies amount to little more than two-thirds of the total damages sustained by her. Accordingly, I would reverse the decision by the trial court and award Appellant the full amount of recovery under both uninsured-motorist policies.

Glaze and Thornton, JJ., join in this dissent.


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

text:
    Donald L. DUNN and Joe Cloud v. Craig WESTBROOK and Mitchell, Williams, Selig, Gates and Woodyard
    97-1218
    971 S.W.2d 252
    Supreme Court of Arkansas
    Opinion delivered July 9, 1998
    [Petition for rehearing denied September 10, 1998.]

      Timothy O. Dudley, for appellants.

      Barber Law Firm, by: Robert L. Henry, III, for appellees.
   David Newbern, Justice.

This is a legal-malpractice case. Drs. Donald L. Dunn and Joe Cloud, the appellants, were partners in a medical practice with Dr. Larry Battles. Attorney Craig Westbrook, the appellee, prepared a partnership agreement for the doctors in 1991 and made revisions to it on July 8, 1993. Dr. Battles sued Drs. Dunn and Cloud after they expelled him from the practice in 1995. Drs. Dunn and Cloud paid Dr. Battles $200,000 to settle the matter and then brought a malpractice action against Mr. Westbrook and his law firm, Mitchell, Williams, Selig, Gates & Woodyard (“Mitchell Firm”).

The complaint, filed on July 5, 1996, alleged that Mr. West-brook was negligent for failing to include in the partnership agreement a “buy-out provision” allowing members of the partnership to expel a fellow member and purchase his partnership interest upon set terms. Drs. Dunn and Cloud alleged that the cost of removing Dr. Battles from the practice would have been less had the buy-out provision been included. The Trial Court granted summary judgment to Mr. Westbrook and the Mitchell Firm on the ground that the complaint was filed beyond the three-year limitations period prescribed by Ark. Code Ann. § 16-56-105 (1987). We affirm.

As this is a legal-malpractice action, Ark. Code Ann. § 16-56-105 is the applicable statute of limitations. The statute requires a claim for malpractice to be filed within three years of “when the negligence occurs.” Goldsby v. Fairley, 309 Ark. 380, 383, 831 S.W.2d 142, 143 (1992). In their complaint, Drs. Dunn and Cloud alleged two separate “occurrences” of negligence. They first alleged that Mr. Westbrook was negligent in 1991 when he drafted the partnership agreement without including a buy-out provision. The complaint asserting that claim was filed on July 5, 1996, well beyond the three-year limitations period. Therefore, under § 16-56-105, Mr. Westbrook and the Mitchell Firm were entitled to summary judgment on the claim that Mr. Westbrook committed legal malpractice in 1991.

Drs. Dunn and Cloud also alleged that Mr. Westbrook was negligent on July 8, 1993, when he revised the partnership agreement without including a buy-out provision. Thus, the complaint, filed on July 5, 1996, was timely in relationship to this second alleged “occurrence” of negligent conduct on Mr. West-brook’s part. We therefore agree with Drs. Dunn and Cloud that § 16-56-105 did not entitle Mr. Westbrook and the Mitchell Firm to summary judgment on the separate claim that Mr. Westbrook committed legal malpractice on July 8, 1993.

We hold, however, that summary judgment on the claim pertaining to Mr. Westbrook’s revising of the agreement in 1993 was properly granted for a different reason. As we have often said, “we will affirm the trial court where it reaches the right result, even though it may have announced the wrong reason.” Marine Servs. Unlimited, Inc. v. Rakes, 323 Ark. 757, 763, 918 S.W.2d 132, 134 (1996). See Calcagno v. Shelter Mut. Ins. Co., 330 Ark. 802, 807, 957 S.W.2d 700, 702 (1997); Nettleton Sch. Dist. v. Owens, 329 Ark. 367, 373, 948 S.W.2d 94, 97 (1997). Here, even if § 16-56-105 did not bar the doctors’ claim that Mr. Westbrook was negligent for failing to add the buy-out provision to the partnership agreement in the course of revising it in 1993, summary judgment was nonetheless proper on that claim because Mr. West-brook owed no duty to his clients in 1993 to render that particular service.

As commentators have observed, “an attorney cannot be negligent for failing to do what there was no duty to undertake.” 1 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 8.2, at p. 556 (4th ed. 1996). “If no duty of care is owed, the negligence count is decided as a matter of law, and summary judgment is appropriate.” Smith v. Hansen, 323 Ark. 188, 196, 914 S.W.2d 285, 289 (1996). See also First Commercial Trust Co. v. Lorcin Eng’g, Inc., 321 Ark. 210, 213, 900 S.W.2d 202, 203 (1995); Lawhon Farm Supply, Inc. v. Hayes, 316 Ark. 69, 71, 870 S.W.2d 729, 730 (1994); Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983).

We have admittedly few statements in our decisions describing in detail the duty owed by an attorney to his client. In very general terms, we have said that the attorney’s duty is “to exercise reasonable diligence and skill on behalf of the client.” Pugh v. Griggs, 327 Ark. 577, 581, 940 S.W.2d 445, 447 (1997). According to the commentators, “[t]he liability of the attorney depends on whether a duty was breached that was reasonably within the scope of the employment.” Mallen & Smith, supra, at p. 558. The agreement, if any, and the “subject matter of the retention” are relevant in determining the existence or scope of the duty. Id. In addition, a duty may be implied: “The basic principle of an implied duty is that an attorney should do all things reasonably necessary to fulfill the objective of the employment.” Id. at p. 559.

The undisputed facts in this case show that Mr. Westbrook was retained in late 1990 to draft the doctors’ partnership agreement. The agreement was then executed in 1991. Over two years later, an accountant associated with the doctors’ practice requested Mr. Westbrook to revise the partnership agreement, for tax-relief purposes, to reflect that the individual doctors, rather than the partnership, owned a life-insurance policy. Mr. West-brook completed that task on July 8, 1993. There is no dispute that Mr. Westbrook — both prior to the time that he drafted the partnership agreement in 1990-91, and prior to the time that he revised it in 1993 — was not requested by the doctors to include a buy-out provision in the partnership agreement.

On these facts, we cannot say that Mr. Westbrook owed any duty to Drs. Dunn and Cloud to add a buy-out provision to the partnership agreement in the course of revising it in 1993. Over two years had passed from the time of the agreement’s initial drafting to the time that it was revised. Not once did Drs. Dunn and Cloud suggest to Mr. Westbrook that the agreement was incomplete or unsatisfactory in any way. The revision that Mr. Westbrook was requested to make in 1993 pertained only to the insurance policy mentioned above. The doctors did not direct Mr. Westbrook to review the entire agreement. Thus, although Mr. Westbrook might have been under a duty at the time of the agreement’s initial drafting to include a buy-out provision, even in the absence of a specific request from his clients, we cannot say that such a duty existed in 1993 when his assigned task was merely to revise the agreement for the purpose of clarifying the ownership of a life-insurance policy.

We note in closing that courts in some jurisdictions have recognized a “peripheral duty” in the context of legal-malpractice cases. See Mallen & Smith, supra, at pp. 561-62. According to those courts’ decisions, an attorney may have a duty to provide certain services to his client even “if neither the lawyer nor the client intended the matter to be within the scope of the retention.” Id. at p. 561. Drs. Dunn and Cloud neither cite those decisions nor urge us to adopt a “peripheral duty” rule. We therefore decline to adopt such a rule in this case. The question whether we should adopt the “peripheral duty” rule remains an open one, however, and we will reserve judgment on that issue until it is squarely before us.

Affirmed.

Glaze and Brown, JJ., concur.

Tom Glaze, Justice,

concurring. I agree with the majority opinion, but do so solely on the rationale contained in Goldsby v. Fairley, 309 Ark. 380, 831 S.W.2d 142 (1982), and Wright v. Compton, Prewitt, Thomas & Hickey, 315 Ark. 213, 866 S.W.2d 387 (1993).

Brown, J., joins this opinion.


author: David Newbern, Justice. Jim H. Boyd, Special Justice,

text:
    MILLER COUNTY, Arkansas v. OPPORTUNITIES, INC. d/b/a Meadowbrook Place
    97-1498
    971 S.W.2d 781
    Supreme Court of Arkansas
    Opinion delivered July 9, 1998
    [Petition for rehearing denied September 10, 1998.]

      Autrey, Autrey & Stewart, by: Ned A. Stewart, Jr., for appellant.

      Dunn, Nutter Morgan & Shaw, by: Winford L. Dunn, for appellee.
   David Newbern, Justice.

The issue in this appeal is whether property owned and operated by the appellee, Opportunities, Inc., is entitled to exemption from ad valorem taxes imposed by the appellant, Miller County. The property consists of land upon which there is an apartment complex occupied by persons aged 55 and older. Exemption was denied by the Miller County Court. That decision was reversed on appeal to the Miller Circuit Court which held that the property falls within the exemption provided in Ark. Const. art. 16, § 5(b), i.e., “Buildings and grounds . . . used exclusively for public charity . . . .” It was also held that prior rulings granting exemption with respect to the property in question barred reconsideration of the issue. We hold that the record does not demonstrate that the property is used exclusively for public charity and that the prior rulings to which the Circuit Court adverted have no res judicata, collateral estoppel, or law-of-the-case effect. We, therefore, reverse the decision.

1. Exemption

The burden on a party claiming a constitutional tax exemption is to prove entitlement beyond a reasonable doubt. City of Fayetteville v. Phillips, 306 Ark. 87, 811 S.W.2d 308 (1991). Tax exemption provisions must be strictly construed against exemption, and if there is any doubt, the exemption must be denied. Pledger v. Noritsu America Corp., 320 Ark. 371, 896 S.W.2d 595 (1995). As in the Pledger case, there is no factual dispute here.

Patty Smith, the Director of Opportunities, Inc., testified that the formal criteria for admission to Meadowbrook Place include “financial resources to meet the monthly fee.” There is nothing in the record to the contrary. Ms. Smith said that no one had been turned away from Meadowbrook Place due to inability to pay, and she had not been authorized by her board of directors to do so. She testified, however, that an applicant who has difficulty meeting the monthly fee covering rent, meals, utilities, and other services is counseled in an effort to find sources of funds to meet the fee. If sources cannot be found, the applicant is referred to another program. All Meadowbrook Place residents pay a monthly fee. The average fee is $650.00. There is nothing in the record to suggest that Opportunities, Inc., pays any part of any resident’s monthly fee at Meadowbrook Place, although the organization subsidizes the operation to a certain extent and uses some of the Meadowbrook Place facilities in support of its other charitable activities.

In cases involving hospitals run by not-for-profit organizations, beginning with Hot Springs School Dist. v. Sisters of Mercy, 84 Ark. 497, 106 S.W. 954 (1907), we have held that the admission of paying patients does not destroy the tax-exempt status of the hospital property. Sebastian Cnty. Bd. v. The Western Ark. Counseling and Guidance Ctr., 296 Ark. 207, 752 S.W.2d 755 (1988). In Hot Springs School Dist. v. Sisters of Mercy, supra, the Sisters of Mercy were operating a hospital and pharmacy dispensing care and medicine to paying and nonpaying patients. Those who could not pay were treated and received medicine free. Fees paid by the paying patients were devoted solely to helping pay for the treatment and medicine received by those who could not pay. We wrote: “The fact of receiving money from some of the patients does not, we think, at all impair the character of the charity, so long as the money thus received is devoted altogether to the charitable object which the institution is intended to further.”

To qualify for the exemption, a hospital must be a place where no one may be refused services on account of inability to pay, and where all profits from paying patients are applied to maintaining the hospital and extending and enlarging its charity. Burgess v. Four States Memorial Hosp., 250 Ark. 485, 465 S.W.2d 693 (1971).

In the case now before us, we have evidence that Opportunities, Inc., has lost money on its operation of Meadow-brook Place, but we have no showing that any charitable activity is occurring there or that the fees paid by the residents are being devoted to a charitable purpose. Applying the hospital cases by analogy, Meadowbrook Place does not qualify for the exemption. Although it has not turned an applicant away due to inability to pay its fees, it is clear that its policy requires that the fees be paid and that an applicant may be refused if he or she is unable to pay. Although help is provided in finding sources for payment, payment is required.

2. Previous rulings

In addition to Ms. Smith’s testimony, the Trial Court also considered three prior orders dealing with the immunity of Meadowbrook Place. A September 27, 1989 order, entitled “County Court Order,” signed by the county judge, a circuit judge, and the county assessor, ordered that the 1988 taxes on Meadowbrook Place be waived based on the warranty deed which conveyed Meadowbrook Place and on information from the county assessor.

On June 18, 1990, a tort action was filed against Meadow-brook Place, and the Miller Circuit Court dismissed the action on the basis that Meadowbrook Place was a charitable institution entitled to charitable immunity.

On October 28, 1991, a hearing was held before the Miller Chancery Court based on a Petition for Tax Exemption by Opportunities, Inc. The Chancelor found that Opportunities, Inc., was a tax-exempt organization in its operation of Meadow-brook Place and removed Meadowbrook Place from the tax rolls. The Chancellor also ordered that the tax collector of Miller County not collect any taxes assessed on the property for prior years. On December 19, 1991, the Chancellor, after hearing the motion of the prosecuting attorney, set aside the October 28 order and then set the matter for a hearing. There is no indication in the record of this case that a hearing was held.

In the case now before us, the Circuit Court, applying the doctrines of res judicata, collateral estoppel, equitable estoppel, and law of the case, held that further consideration of the issue of taxation of the Meadowbrook Place property was barred.

a. Res judicata

The claim-preclusion facet of res judicata bars relitigation of a subsequent suit when: (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; and (5) both suits involve the same parties or their privies. Griffin v. First National Bank, 318 Ark. 848, 888 S.W.2d 306 (1994).

The September 27, 1989 order, signed by the county judge, a circuit judge, and the county assessor, is most unusual. It contains no reference to any proceedings upon which it was based. We hold it is not entitled to res judicata effect because it is not known which court, if any, rendered it. There is no indication that Miller County was a party to the order or to any proceedings giving rise to it. There is, indeed, no evidence that the order was the result of any kind of suit or that the suit was “fully contested.”

The October 28, 1991 chancery order has no res judicata or other effect because it was set aside, apparently because the chancery court lacked jurisdiction. See Ark. Const. art. 7, § 28, which vests exclusive jurisdiction in the county courts with respect to all matters relating to county taxes.

The December 7, 1990 court order has no res judicata effect in this case because the underlying tort action did not involve the same claim or cause of action, and Miller County was neither a party nor in privity with any of the parties to the tort action.

b. Collateral estoppel

The following elements must be shown in order to establish collateral estoppel: (1) the issue sought to be precluded must the same as that involved in the prior litigation; (2) the issue must have been actually litigated; (3) the issue must have been determined by a final and valid judgment, and (4) the issue must have been essential to the judgment. Hill v. State, 331 Ark. 312, 962 S.W.2d 762 (1988).

The September 27, 1989 order does not bar a holding against Meadowbrook Place based on collateral estoppel because there is no indication that any issue was actually litigated, and there is some question as to whether the order constitutes a final and valid judgment.

The December 7, 1990 order does not bar a holding against Meadowbrook Place based on collateral estoppel because the issue in the two cases is not the same.

The October 28, 1991 order does not bar a holding against Meadowbrook based on collateral estoppel as the order was set aside.

c. Law of the case

The doctrine of law of the case prevents an issue raised in a prior appeal from being raised in a subsequent appeal unless there is a material variance in the evidence before the court in each appeal. Fairchild v. Norris, 317 Ark. 166, 876 S.W.2d 588 (1994). The doctrine is, however, not limited to issues raised in prior appeals as it was developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit. Id.

The September 27, 1989 order does not bar a holding against Meadowbrook based on law of the case because the order was not part of this lawsuit, and there is no indication that Miller County was a party in that suit.

The December 7, 1990 order does not bar a holding against Meadowbrook based on law of the case because the tort action is not part of this lawsuit.

The October 28, 1991 order does not bar a holding against Meadowbrook based on law of the case because the Chancellor set aside the order.

d. Equitable estoppel

As to the doctrine of equitable estoppel, we recognize four necessary elements: (1) the party to be estopped must know the facts; (2) the party to be estopped must intend that his or her conduct be acted on or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the latter must be ignorant of the true facts; and (4) must rely on the former’s conduct to his or her injury. Foote’s Dixie Dandy v. McHenry, Adm’r, 270 Ark. 816, 607 S.W.2d 323 (1980).

Opportunities, Inc., argues that Miller County should be estopped from arguing that Opportunities, Inc., is not tax exempt based on the prior orders. Meadowbrook Place further argues that “the purpose and use of the property was discussed with the City of Texarkana, Arkansas, in securing the deed to the property and with officials of Miller County shown on the referenced orders finding the right to the tax exemption for charitable purposes of this property.”

There is no indication that Meadowbrook Place relied on actions or statements by an agent of Miller County. The September 27, 1989 order was signed by the tax assessor; however, it only stated that the 1988 taxes were waived. Ms. Smith did testify that Opportunities, Inc., discussed its intended use of Meadow-brook Place with the City of Texarkana, Arkansas, with the Miller County Judge, the Miller County Tax Assessor, and a Miller County Circuit Judge; however, she does not indicate that any agent of Miller County guaranteed tax exempt status or that Opportunities, Inc., relied on such statements in purchasing and developing Meadowbrook Place. There is no indication in the abstract that Opportunities, Inc., purchased Meadowbrook Place in reliance upon any statement by an agent of Miller County that the property would be tax exempt based on charity status.

Reversed and remanded.

Corbin and Thornton, JJ., not participating.

Special Justice Martha Miller Harriman joins in this opinion.

Chief Justice Arnold and Special Justice Jim H. Boyd dissent.

Jim H. Boyd, Special Justice,

dissenting. The issue before the Court is to determine whether or not Appellee’s property in question is entitled to exemption from ad valorem taxes under the Arkansas Constitution, which states in pertinent part: “The following property shall be exempt from taxation: . . . buildings and grounds and materials used exclusively for Public Charity.” Ark. Const., art 16, § 5(b).

The uncontested facts before the Court are that Opportunities, Inc., is a valid, charitable, nonprofit corporation and has been at all times pertinent hereto. Opportunities acquired the realty in question exclusively for nonprofit, charitable purposes; constructed the apartment complex with the intent to further their charitable, nonprofit goals; and have in fact exclusively operated the complex only in furtherance of their charitable, nonprofit goals. Opportunities has lost approximately $500,000 in their elderly housing project associated with the property in question, but have managed to survive. The findings by the Trial Court clearly so hold beyond a reasonable doubt. Tax cases of this type are to be reviewed by the Court de novo and the factual findings of the trial court are to be upheld unless clearly erroneous. City of Little Rock v. McIntosh, 319 Ark. 423, 892 S.W.2d 462 (1995).

The real issue is whether or not Article 16, § 5(b) of the Arkansas Constitution prohibits a charitable, nonprofit corporation that charges a base fee for its services from receiving an ad valorem tax exemption. I find no such prohibition. In my opinion, it is in furtherance of the State’s goals to allow a charitable organization using property exclusively for charitable purposes to receive tax exemption, even if a minimum fee is charged for its services. Many charitable projects could not survive, or would never get started, if their services were not at least partially self-supporting. An obvious way to determine if a project (such as Appellee’s elderly housing project) will work is to run projections, proformas, etc. as the business world does routinely and determine what it will take to make the project work. The minimum fee might be premised to follow the old adage that one cannot help those who will not help themselves, or it might just be pure economics. Either way, the bottom line is that the property is used exclusively for charitable purposes, and the elderly housing project has existed as such for years. Did the framers of the Constitution prefer that if a charity was not financially strong enough to offer its services free that it should not exist? If the Appellee cannot afford to give its housing for free, should they just close down and put the elderly on the streets? I do not think so. In Appellee’s situation, it seems that they have shown that if they charge each elderly tenant a minimum fee, their elderly housing project works. They make up the difference in costs with regular contributions from charity. They have donated $500,000 to the property in losses, but the project goes on.

In Hot Springs School District v. Sisters of Mercy of Female Academy of Little Rock, Ark., 84 Ark. 497, 106 S.W.2d 954 (1907), the Supreme Court cited with approval the case of Pennsylvania Hospital v. Delaware County, 169 Pa. 305, 32 Atl. 456, quoting the Court as follows: “Property which is used directly for the purpose, and in the operation of charity, is exempt, though it may also be used in a manner to yield some return and thereby reduce the expenses.”

In Sebastian County Equalization Board v. Western Arkansas Counseling and Guidance Center, Inc., 296 Ark. 207, 752 S.W.2d 755 (1988), the Court reaffirmed the pertinent part of Sisters of Mercy by stating: “We held that the paying patients would not destroy the concept that the hospital was being used exclusively for charitable purposes. ...”

In Sloan v. Voluntary Ambulance Service, 37 Ark. App. 138, 826 S.W.2d 296 (1992), the Court of Appeals was required to determine if an assessment fee on each household in the county where the ambulance service operated disqualified the service from being considered an “Institution maintained and operated wholly as public charity” under the Arkansas Workers’ Compensation Act, Ark. Code Ann. § 11-9-102(3)(A)(iii) (1987). Although this was not an ad valorem tax case, the principle is the same. In Sloan, the Court stated, “We do not think the fees paid to VAS by EMSD prevent, as a matter of law, VAS from being an institution maintained and operated ‘wholly’ as a public charity. . . .” Id. at 142, 826 S.W.2d at 298.

So, where does the idea come from that a public charity’s property used exclusively for public charity is not entitled to an exemption from ad valorem taxes as a matter of law because it charges a minimum fee for its services? The idea has grown case by case because one of the factors often cited as supporting the Court’s findings that the property in question was entitled to exemption was that the charity offered its services free if someone couldn’t pay. However, none of the cases has clearly held that this was an indispensable element that, in effect, was a matter of law under the Arkansas Constitution. We should not now so hold. Even the Appellant acknowledges that this is really the only issue in this case.

Accordingly, I hold that the facts show beyond a reasonable doubt that the property in question has been, and is being, used exclusively for charitable purposes, and the fact that a minimum fee is charged for its services does not, and should not, prohibit the property in question from being exempt from Miller County ad valorem taxes.

I would affirm the lower court’s ruling.

Chief Justice Arnold joins in this opinion.