text:
    Carey CARPENTER v. Roger V. LOGAN, Probate Judge
    83-185
    662 S.W.2d 808
    Supreme Court of Arkansas
    Opinion delivered January 9, 1984

      Howell, Price & Trice, P.A., by: Dale Price, for appellant.
    No response by appellee.
   Robert H. Dudley, Justice.

Sheryl Carpenter was eight to eight and one-half months pregnant at the time she was killed in an automobile accident. The investigating officer found the dead fetus outside Sheryl’s body and concluded that the force of the impact had thrust the fetus through Sheryl’s abdominal wall. Carey Carpenter, the widower, filed a petition for the appointment of an administrator for the “newborn, who resided at Route 1, Omaha, Arkansas.” The petition was granted. Later, the probate court vacated its order appointing an administratrix and issuing letters of administration because they were issued “for a dead fetus.” No appeal was taken. A second and third petition for the appointment of an administrator were filed by Carey Carpenter and the probate court held it was “without authority to order the administration of the estate of said unborn fetus.” We affirm that order. Jurisdiction is in this Court. Rule 29(1 )(c).

The appellant, in the ex parte probate proceeding below and now in this ex parte appeal, urges that the issue “is whether an unborn viable fetus or a viable fetus born dead as a direct result of trauma caused by negligence or willful and wanton misconduct has a cause of action against the tortfeasor.” The issue stated by appellant can be reached only in an adversary tort proceeding and not in an ex parte probate proceeding.

The wrongful death statute, Ark. Stat. Ann. §§ 27-906— 27-910 (Repl. 1979), will determine whether, or to what extent, there is a right to maintain an action, or to recover damages, for the death of an unborn child. The action, if any, is a tort action and is cognizable in circuit court. We will not interpret the wrongful death statute in an ex parte probate proceeding. For a complete survey of tort cases involving wrongful death statutes and actions by unborn children see Annotation: Right to Maintain Action or to Recover Damages for Death of Unborn Child, 84 ALR3d 411.

The issue before the probate court and now on appeal in this case is whether an unborn fetus or a fetus born dead is a deceased person within the terms of the probate code. Ark. Stat. Ann., Title 62, Chapter 21 (Repl. 1971 and Supp. 1983).

In Arkansas the probate court is a court of special and limited jurisdiction, having only such jurisdiction and powers as are conferred by the constitution or by statute, or necessarily incidental to the exercise of the jurisdiction and powers specifically granted. Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810 (1976). Nothing is said about unborn children in the constitutional provision concerning probate courts or in the statutory jurisdictional provision. See Ark. Const, art. 7, § 34, as amended by Amendment 24, § 1; Ark. Stat. Ann. § 62-2004(b) (Repl. 1971). Any attempt to extend the probate code to unborn children would be without specific authority and would be void. See Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978). The trial court was correct in refusing to grant letters of administration to a deceased fetus.

The ruling of the trial court was correct for a second reason. Carey Carpenter’s first petition was granted but then vacated by the trial court. Carpenter did not appeal. More than six months later he renewed his petitions for the appointment of an administrator for the estate of the same fetus. The vacating of the order was the equivalent of a dismissal. In Screeton v. Crumpler, Ex’x, 273 Ark. 167, 617 S.W.2d 847 (1981), concerning a will contest, we stated:

The appellant’s brief implies that the dismissal should have been without prejudice, but we do not think that procedure... was available. A proceeding to probate a will is a special proceeding, not an “action” as that term is ordinarily used... It does not constitute a civil action within ARCP, Rules 2 and 3. A will contestant cannot take a nonsuit under Rule 41, because such a contest is not an independent proceeding in itself. It would seriously disrupt the administration and distribution of estates if a will contest could be dismissed, voluntarily or without prejudice, and refiled at some indefinite later date. Hence the dismissal in the probate court was necessarily with prejudice.

Thus, the appeal was not timely.

Our affirmance of the probate order does not preclude the wrongful death tort issue from being raised in an adversary proceeding. If the tort action exists, one form of it may be filed by the heirs at law. Ark. Stat. Ann. § 27-907 (Repl. 1979); Maryland Casualty Co. v. Rowe, 256 Ark. 221, 506 S.W.2d 569 (1974); Dukes v. Dukes, 233 Ark. 850, 349 S.W.2d 339 (1961).

Affirmed.

Hollingsworth, J., not participating.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    William George MYERS v. Berta MUUSS, Daivd B. BEILER, and Gisela KANNADY
    83-195
    662 S.W.2d 805
    Supreme Court of Arkansas
    Opinion delivered January 9, 1984
    [Rehearing denied February 6, 1984.]

      William George Myers, for appellant.

      Law Office of W. B. Putman, by: W. B. Putman and E. E. Maglothin, Jr., for appellee, Kannady.

      Everett ir Whitlock, by: Robert L. Whitlock, for appellee, Beiler.

      Charles E. Hanks, for appellee, Muuss.

      Hollingsworth, J., not participating.

   Steele Hays, Justice.

Appellant, William George Myers, practices law in Fayetteville. In September 1981, he was retained by appellee, Berta Muuss, who claimed to be due an accounting for property entrusted to her daughter and son-in-law, appellees Davis and Bisela Beiler, who were contestants in a divorce suit. Myers was authorized to file suit for an accounting by the Beilers and to assist Mrs. Beiler’s lawyer in the approaching trial of the divorce suit. He was to be paid $60.00 per hour and out-of-pocket expenses. He promptly filed suit for an accounting and actively assisted in preparation for trial of the divorce suit, which was non-suited on the eve of the trial, refiled, and later consolidated with the accounting suit.

In November, Mr. Myers submitted a statement for services and expenses, aggregating $1,355.40. Mrs. Muuss, a German national, could speak no English and she and Myers had difficulty communicating. For whatever reason, Mrs. Muuss became dissatisfied with Mr. Myers’ representation and sometime before the consolidated suits were scheduled for trial on May 5, she dismissed Myers and employed other counsel. Mr. Myers contested his dismissal. He moved the court to fix his fee and impress a lien pursuant to Ark. Stat. Ann. §§ 25-301 and 302 (Repl. 1962), also filing lis pendens against real property involved in the divorce suit. Before trial, the Chancellor heard proof on Myers’ status and found he had been discharged. Consideration of the other issues was deferred.

After trial, Myers renewed his demands for a lien and petitioned for a reopening of the case. The Chancellor heard testimony and argument on October 4, and declined to reopen the case, giving as his reasons the fact that none of the litigants was requesting reopening and there was no property against which to impress a lien.

Appellant lists thirteen assignments of error in his statement of points relied on for reversal. However, in argument he departs from those statements of error and frames the issues in three broadly stated questions of law: (1) "What is the law of Arkansas pertaining to attorney liens and their enforcement?” (2) "Can an attorney in seeking to enforce his statutory lien properly file and maintain Lis Pendens as to the real property in the case as to which his client could have properly maintained a Lis Pendens notice of record prior to the final disposition of the case?” (3) "What are the duties, responsibilities, powers and authority of a trial judge in receiving, investigating and initiating appropriate disciplinary action as to complaints made to him of professional misconduct of attorneys practicing of record in specific cases before that trial judge?”

Appellant’s brief is not in conformity with Rule 9 (c) of our rules, as general questions of law may not be substituted for a concise statement of points of error relied on for a reversal of a judgment or decree. However, in an effort to consider the appeal we will restate what we take to be appellant’s assignments of error: (1) The Chancery Court erred in refusing to reopen the case for the purpose of enforcing appellant’s lien; (2) in refusing to consider appellant’s lis pendens; and (3) in refusing to hear appellant’s complaint that opposing counsel was guilty of professional misconduct.

At the October 4 hearing, a number of witnesses were called by appellant in an effort to determine what, if anything, Mrs. Muuss had received in return for a dismissal of her complaint. The undisputed testimony established that she had acquired nothing from the dismissal of her claim. Mr. Myers candidly acknowledged to the trial court that he was not able to show any asset to which his lien might attach. Nevertheless, he argues on appeal that it was error to deny him his lien, though where or how it could be impressed is not explained.

Appellant cites us to cases generally giving a liberal construction to our lien statutes: Home Insurance Co. v. Jones, 253 Ark. 218, 488 S.W.2d 190 (1972); Metropolitan Life Insurance Co. v. Roberts, 241 Ark. 994, 411 S.W.2d 299 (1967); Hamm v. Howard, 216 Ark. 326, 225 S.W.2d 333 (1949); Slayton v. Russ, 205 Ark. 474, 169 S.W.2d 571 (1943); St. Louis Iron Mtn. and So. Ry. Co. v. Hays & Ward, 128 Ark. 471, 195 S.W. 28 (1917). In Slayton, Russ’ suit against Slayton was settled by a direct payment of $50.00 by Slayton to Russ, without the knowledge and consent of Russ’ attorneys. The trial court gave judgment against Slayton to Russ’ attorneys in the amount of $318. Slayton argued on appeal that Russ’ suit could not have succeeded. We rejected that argument (though recognizing it as the majority view), saying that after a suit is filed a settlement with the plaintiff without the consent of his attorney is “the only prerequisite” to a right of the attorney to have his fee fixed under the statute, thus a defendant may not argue that the plaintiff’s case is groundless where he had paid to settle the law suit.

Similarly, in St. Louis Iron Mtn. & So. Ry. Co. v. Hays & Ward, supra, the railroad settled a personal injury suit with the client of Hays & Ward by paying $5,000 directly to the client, without the knowledge of the lawyers. The law firm intervened in the pending suit, basing their lien on a contingent fee agreement, which the court upheld, impressing a lien upon the property of the railroad. We affirmed.

In Metropolitan Life v. Roberts, supra, the lien was upheld where an insurer paid a death claim directly to its insured, notwithstanding notice by the insured’s lawyer, Roberts, that he represented the insured. In Home Insurance v. Jones, supra, the lien was disallowed where a settlement was reached between the insured and the insurer, but there we found the attorney for the insured had failed to give written notice of his representation. In each of these cases it should be noted that the settlements were based on the payment of money by one litigant to another, to the exclusion of the attorney for the party receiving the payment.

In 1940, the case of Missouri Pacific v. Geurin, 200 Ark. 755, 140 S.W.2d 691 (1940), was decided on the identical facts presented by this appeal, Geurin filed suit to recover $3,000 for personal injuries allegedly sustained while riding as a passenger on one of the defendant’s trains. Geurin’s contract with his lawyer provided for a contingent fee of one-half of any amount recovered. Shortly after suit was filed an insurance adjustor for the railroad obtained from Geurin, without his lawyer’s knowledge or consent, an affidavit stating that he wanted his suit dismissed with prejudice and without payment to him of any remuneration. Geurin’s lawyer petitioned for a reasonable attorney’s fee from the railroad, which the trial court granted in the sum of $400. On appeal the railroad argued that Geurin’s injuries were the result of a tavern brawl and that no monetary consideration was paid Geurin for the affidavit, he voluntarily dismissed his suit without compensation. We reversed, noting that it was undisputed that Geurin was paid nothing.

Appellant answers the Geurin case by pointing out that the ensuing session of the legislature further liberalized the lien statutes by the adoption of Act 59 of 1941, and later in the same session enacted Act 306 which inserted the words “if any” in the following clause:

. . . and the amount of such fee or compensation shall not be necessarily limited to the amount, if any, of the compromise or settlement between the parties litigant, (our italics).

But we are not willing to treat the Geurin case, which reached a sound result, as overturned by such inconclusive wording as “if any.” The purpose of the insertion is not that clear, it may simply have been intended to recognize that there are circumstances where no lien can be imposed, but the trial court may nonetheless award a fee under this statute, even though no monetary remuneration is given. This was the situation with respect to Roe Hamm in Hamm v. Howard, supra.

Appellant also argues that the Chancellor should have reopened the case, irrespective of the lack of assets, but we find no reversible error in that refusal. Without a showing that Mrs. Muuss received tangible assets in return for the dismissal of her claim, no useful purpose would be served by

reopening. Granted, appellant may have been entitled to a fee from Mrs. Muuss, based upon his contract, unsecured by a statutory lien, but that issue was never severed from the lien issue, the two were treated as one, and having failed to ask the Chancellor to specifically pass on that claim, appellant may not assert it in this appeal. See 4 C.J.S., Appeal and Error, § 320, p. 1021 and § 321, p. 1026.

Appellant’s argument with respect to the lis pendens is that it would encourage concealment of assets aimed at frustrating an attorney’s lien should we fail to hold that Ark. Stat. Ann. § 27-501 permits the filing of a lis pendens notice by an attorney asserting a statutory lien. But the point is abstract to the issues of this case — the rights of innocent purchasers have not intervened and we have often said we will not render advisory opinions. Stafford v. City of Hot Springs, 276 Ark. 466, 637 S.W.2d 553 (1982).

Finally, appellant believes the trial court should have addressed his complaint that opposing counsel were guilty of professional misconduct. The claim stems, evidently, from the fact that notice of the taking of depositions was not given Mr. Myers after other counsel began representing Mrs. Muuss. While we have recognized from the earliest times the inherent power of the trial court to oversee the conduct of attorneys practicing before it [See Beene v. State, 22 Ark. 149 (1860)], those powers were drastically altered by the adoption of Amendment 28, which states simply:

The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law. Ark. Const. Amend. 28.

Whatever may be said of the complaint in this instance, it was not obligatory on the trial court to act, as recourse is open to appellant through the procedures of the Supreme Court Committee on Professional Conduct. Those procedures are thoroughly discussed in Davis, et al v. Merritt, Chancellor, 252 Ark. 659, 480 S.W.2d 924 (1972); Armitage v. Bar Rules Committee, 223 Ark. 465, 266 S.W.2d 818 (1954); and Hurt v. Bar Rules Committee, 202 Ark. 1101, 155 S.W.2d 697 (1941). The history and functioning of the Committee on Professional Conduct are exhaustively reviewed by Professor Howard W. Brill in 33 Arkansas Law Review 572.

Other points are argued in appellant’s reply brief, but as they were not discussed in his original brief, they may not be argued in reply. Vincent v. Wesson, 204 Ark. 1108, 166 S.W.2d 1023 (1942); Commonwealth Pub. Sew. Co. v. Lindsay, 139 Ark. 283 (1919). Appellees’ motion for additional costs is denied.

The Chancellor is affirmed.

Hollingsworth, J., not participating.


author: Per Curiam.

text:
    Ricky D. LONG v. STATE of Arkansas
    CR 83-164
    662 S.W.2d 811
    Supreme Court of Arkansas
    Opinion delivered January 9, 1984
    Appellant, pro se.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Deputy Atty. Gen., for appellee.
   Per Curiam.

On October 31, 1983, we granted appellant’s pro se motion for belated .appeal and directed his trial attorney John Kearney to continue to represent the appellant in the appeal of two convictions. Soon thereafter the appellant filed a motion asking that Mr. Kearney be relieved so that he could proceed pro se on appeal. The motion was denied on November 21,1983, because it did not appear that the appellant could comply with our rule requiring briefs to be typewritten. In response to our opinion, appellant filed a second motion for permission to proceed pro se. In that motion he said that he would “do his level best” to comply with the rules of the Court, but he asks this court to order the Department of Correction to provide him access to a typewriter or appoint a typist to type the brief. Before we could act on this motion, appellant filed the motion which is now before us in which he categorically states that he will comply with the rules of the Court. He has also submitted an affidavit refusing the services of an attorney on appeal in accordance with Supreme Court Rule 8 (d).

The motion is granted. As we said in our opinion of November 21, 1983, an appellant will be allowed to proceed pro se if he makes an intelligent waiver of his right to counsel on appeal and avers that he will abide by the rules of this Court. As appellant has now said that he can conform to the rules and has complied with Rule 8 (d), we grant him permission to represent himself on appeal.

Motion granted.

Hollingsworth, J., not participating.


author: Darrel Hickman, Justice.

text:
    H. N. WARREN and Vera S. WARREN, individually and d/b/a WARREN CONSTRUCTION COMPANY v. Mike DETLEFSEN et al
    83-231
    663 S.W.2d 710
    Supreme Court of Arkansas
    Opinion delivered January 16, 1984
    [Rehearing denied February 21, 1984.]

      Vickery «Sr Jones, P.A., for appellants.

      Spencer, Spencer ir Shepherd, P.A., for appellees.
   Darrel Hickman, Justice.

Mike Detlefsen and others filed suit to enjoin the construction of two duplexes in the Warren Subdivision 3 in El Dorado, Arkansas. This subdivision is one of three adjoining residential neighborhoods which were part of a development by the Warrens through their partnership, the Warren Construction Company. The chancellor held that the Warrens should be enjoined from building the duplexes based on the restrictive covenants contained in the deeds of the appellees and the representations made by the Warrens concerning the development of the three subdivisions. In finding that these were enforceable restrictive covenants for single family use, the chancellor relied on the language in the deeds that the property was to be used for residential purposes, and that “carport” was used singularly in the deeds. Those factors coupled with the oral representations of the Warrens led the chancellor to conclude the restrictive covenants were enforceable. We find no error under these facts.

The chancellor received into evidence deeds to the lots which the Warrens had sold in each of the three units. In Unit One, there are nine lots, with five of the deeds containing covenants restricting use to “residential purposes only” and requiring a minimum of fourteen hundred square feet. One deed recites similar language except it requires a minimum of twelve hundred square feet. One deed states that the lot can be “used only for residential purposes” and requires a minimum cost of $30,000. Two deeds contain no covenants.

Unit Two consists of 21 lots with three of the deeds restricting use to “residential purposes only,” “the dwelling,” and require a minimum of fourteen hundred square feet. Four deeds are restricted to “residential purposes only,” “the residence dwelling,” and a minimum of fourteen hundred square feet. Four deeds contain this same language except the area is reduced to a minimum of twelve hundred square feet. Eight deeds in Unit Two contain no covenants.

In Unit Three, 20 lots had been sold at the time of trial. Of those, 11 deeds contain the restriction “for residential purposes only,” “the residence dwelling,” and require a minimum of twelve hundred square feet. One deed is restricted to “residential purposes only,” “the residence,” and requires a minimum of fourteen hundred square feet.

In promoting the development, the Warrens did not make a distinciton between the three units, selling the area as a single neighborhood. There are no visible boundaries or divisions between the units. The Warrens, through Warren Construction Company, are the grantors, the developers, and the builders of the subdivisions. The Warrens displayed a master plat of the entire development on the wall of their office for prospective purchasers to view. This master plat was not recorded.

The Warrens argue that the chancellor erred in allowing witnesses to testify concerning oral representations allegedly made by them at the time the appellees were considering purchasing lots and homes within the units. This concerned the type of homes being built and the general scheme or plan of development which the Warrens intended to pursue. Testimony reflected that the Warrens had discussed these intentions with the prospective buyers, assuring them that only single family homes would be constructed, that no apartments would be constructed and that no mobile homes would be placed in any of the three units. Further, the appellees testified that they relied on these statements, at least in part, in deciding to purchase from the Warrens. At least one witness said he was told no duplexes would be built. Generally, duplexes were not mentioned.

While parol evidence is generally inadmissible to vary or contradict the language of a restrictive covenant, Linder Corp. v. Pyeatt, 222 Ark. 949, 264 S.W.2d 619 (1954), such evidence is admissible to establish a general building plan or scheme of development and improvement. Such plan or scheme can be proven by express covenant, by implication from a field map, or by parol representation made in sales brochures, maps, advertising, or oral statements upon which the purchaser relied in making his decision to purchase. 20 Am. Jur. 2d Covenants § 175. This general scheme is shown by the deeds and by the oral statements of the Warrens. Seven of the nine deeds in Unit One are restricted to residential use. Thirteen of 21 deeds in Unit Two are restricted to residential use. In Unit Three, 12 of the 20 deeds contain similar restrictions. Mrs. Warren testified that she and Mr. Warren intended to insert the restrictions in all deeds in the three units. She also testified that they were aware that the prospective purchasers were relying on their oral representations in deciding whether or not to buy. The subdivisions, themselves, consisted of single-family dwellings only at the time the appellees purchased their lots and homes. Both Warrens testified that the economy dictated they change their plans and build the duplexes rather than single family residences.

The Warrens argue that the chancellor erred in finding that the restrictions contained in the deeds of the appellees were the proper basis for enjoining the construction of the duplexes. They contend that the wording of the restrictions does not limit their development to single family dwellings, but rather, that multi-family use was permissible, citing Shermer v. Haynes, 248 Ark. 255, 451 S.W.2d 445 (1970). There, we held that covenants which restrict use to “residence” or “dwelling” purpose alone, generally do not have the effect of forbidding the erection or maintenance of multiple family dwellings. However, the chancellor in this case had testimony and facts of a total building and selling scheme which indicate single residence purposes only. Further, the testimony reflects that the oral representations, combined with the express covenants, were the basis of the purchasers’ decisions to buy lots in the neighborhood.

The homes in the units display a uniformity of development, further indication of the general plan and scheme.

These restrictions are enforceable against the lots retained by the Warrens in the three units as a reciprocal negative easement. When the grantor places an express restriction in deeds to his grantees within the particular development, the restriction attaches to the lots retained to prevent their use in a manner detrimental to the enjoyment and value of neighboring lots sold with the restriction. 20 Am. Jur. 2d Covenants § 173. The Warrens had the restrictions placed in their grantees’ deeds, and the chancellor’s findings support a conclusion that the Warrens intended to bind all the lots sold within the three units.

Finally, the Warrens challenge the standing of homeowners in Units One and Two to seek enforcement of the restrictions against the lots retained by the Warrens in Unit Three. They argue that these first two subdivisions are legally separate subdivisions and, as such, the owners within them can not have the restrictions enforced in the third, separate subdivision. However, in the negotiations leading to the purchase, the Warrens represented that the development would consist of some 350 homes, all being single family dwellings. The buyers were shown a master plat which depicted the three subdivisions as a single development, with only a line distinguishing the boundaries of each unit. Otherwise, there are no visible boundaries or divisions between the units. The buyers relied upon these factors in making their decision to purchase. Also, at least two of the appellees were homeowners in Unit Three.

While the chancellor based his decision on narrow reasoning, we must affirm unless the decision is clearly erroneous. A.R.C.P. Rule 52, Armstrong v. Harrell, 279 Ark. 24, 648 S.W.2d 450 (1982). The distinctive facts in this case support the chancellor’s conclusion and since we cannot say he was clearly erroneous, we affirm his decision.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Anthony REED v. STATE of Arkansas
    CR 83-107
    662 S.W.2d 821
    Supreme Court of Arkansas
    Opinion delivered January 16, 1984

      William R. Simpson, Jr., Public Defender, by: Arthur L. Allen, Deputy Public Defender, for appellee.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Anthony Reed was convicted of the burglary and robbery of Jennie Caswell. He was sentenced to thirty years on each count, to be served consecutively. Reed appeals, arguing that his arrest was illegal and that his subsequent confession was tainted thereby and inadmissible. We affirm.

After Reed was arrested for Caswell’s robbery, he confessed to that crime as well as several others. His conviction for one of those crimes has already come to us on appeal and we affirmed. Reed v. State, 280 Ark. 316, 657 S.W.2d 557 (1983). There, as here, the trial court held that there was probable cause for the Caswell arrest and that the confession for the separate crime was admissible.

The issue there was exactly the same as the one now presented. The facts, which we recited in Reed v. State, supra, were also the same, because the trial court held only one probable cause hearing to determine the legality of the one arrrest that resulted in the several confessions. On precisely the same facts we found that the trial court did not err. We adhere to our former ruling and find no error in the Court’s determination that there was probable cause for the arrest and in the admission of the confession.

Affirmed.


author: John I. Purtle, Justice. Steele Hays, Justice,

text:
    Carlton MIXON and Evelyn MIXON v. CHRYSLER CORPORATION; C. B. JELKS and Harold JELKS, d/b/a JONESBORO MOTOR COMPANY
    83-221
    663 S.W.2d 713
    Supreme Court of Arkansas
    Opinion delivered January 16, 1984
    [Rehearing denied February 21, 1984.]

      Lambert ir Brown, by: Don R. Brown and Stewart K. Lambert, for appellants.

      Davis, Cox &r Wright, by: Constance G. Clark, for appellee Chrysler Corporation.

      Barrett, Wheatley, Smith & Deacon, for appellees C. B. Jelks and Harold Jelks, d/b/a Jonesboro Motor Company.

      Dudley and Hollingsworth, JJ., not participating.

   John I. Purtle, Justice.

On April 8,1983, the trial court entered an order granting appellees’ motion for summary judgment. The trial court found that there was no genuine issue of any material fact and also found that answers to appellants’ outstanding interrogatories to appellee Chrysler could have no bearing on the motion for summary judgment.

For their appeal the appellants argue that there was a genuine issue of fact and that the court erred in denying appellants’ motion to compel discovery. We do not agree with appellants on either argument.

On December 19, 1977, Carlton Mixon was driving his 1976 Plymouth Volare automobile along Arkansas highway 58, with his wife, Evelyn Mixon, as a passenger, when he became unable to control the vehicle. It crashed down an embankment, thereby damaging the vehicle beyond repair and inflicting injuries upon both appellants. The vehicle was purchased new from Jonesboro Motor Company in February, 1976. At the time of the occurrence the odometer reading was approximately 30,000 miles. There had been no repairs to the steering mechanism nor had it been found defective. After the occurrence the brakes were inspected by representatives of the appellants and by their collision insurance carrier. No defect was discovered. Therefore, no notice was given to either appellee. By the time appellants sought to inspect the steering mechanism the wreckage had been disposed of.

Appellants filed a complaint against the appellees on July 16,1979. The complaint alleged: 1) negligent design or manufacture; 2) breach of implied warranties; 3) failure to properly prepare and inspect prior to delivery; and 4) res ipsa loquitur. Appellants submitted interrogatories to Chrysler February 3, 1983. Chrysler filed a motion for summary judgment on February 15, 1983. Subsequently the other appellees filed a motion for summary judgment. On March 23,1983, appellants’ motion to compel discovery was filed. Summary judgment in favor of both appellees was entered on April 8, 1983, and in the same order the court refused to compel Chrysler to answer interrogatories on the ground that the answers would have no bearing on the case.

Were there genuine issues of any material fact to be determined? This is the test to be used in considering summary judgments. Leigh Winham, Inc. v. Reynolds Ins. Agency, 279 Ark. 317, 651 S.W.2d 74 (1983). The proof must be considered in the light most favorable to the party opposing the motion for summary judgment. Talley v. MFA Mutual Ins. Co., 273 Ark. 269, 620 S.W.2d 260 (1981). In the present case the vehicle is not available for inspection or testing. No tests were performed on the steering mechanism prior to destruction of the salvaged vehicle. Appellants made no complaint and had no services performed on the steering system during the 21 months after it was purchased. Appellants have not submitted, by affidavit or otherwise, any evidence that the steering system was defective at any time, much less at the time of delivery. The doctrine of strict product liability, which has been accepted in Arkansas, does not relieve the proponent of a defective product claim from the burden of proof as to the existence of a defect. Southern Co. v. Graham Drive-In, 271 Ark. 223, 607 S.W.2d 677 (1980). Strict liability eliminates the need to show both privity and negligence. But a plaintiff still must prove injury and that it was caused by the product. The possibility that the product may have been defective is not enough. The proponent of a products liability claim must produce evidence from which the trier of fact may reasonably conclude that it is more probable than not that the injury resulted from a defective product. Southern Co., supra.

It is not necessary that a plaintiff prove the defect by direct proof. However, in the absence of direct proof the plaintiff must negate other possible causes of the injury, thereby raising a reasonable inference that the injury was caused by a defective product. Furthermore, it must be proven that the product was defective while it was still in the control of the defendant. Cockman v. Welder’s Supply Co., 265 Ark. 612, 580 S.W.2d 455 (1979). It is true that supporting affidavits against the motion for summary judgment stated none of the affiants, or others known to have had access to the vehicle, repaired, adjusted or otherwise tampered with the steering system. These affidavits do not negate slick roads, speed, driver control, normal wear and tear or other possible causes as the proximate cause of appellants’ injuries. There was no allegation of a specific defect and certainly no evidence to support such a theory. Res ipsa loquitur simply does not apply in this case. Ford Motor Co. v. Fish, 232 Ark. 270, 335 S.W.2d 713 (1960). We do not find that the summary judgment was entered in error.

The only serious question presented in this case is whether the court erred in denying appellants’ motion to compel discovery. The suit was filed on July 16, 1979. The interrogatories were submitted to Chrysler on February 3, 1983. No prior discovery attempts were made by the appellants. The interrogatories attempted to obtain information about a factory recall of this vehicle. The recall notice stated that a possible defect in a frame support plate might exist and such defect could affect directional control “particularly during heavy braking.” The appellant driver had previously stated in a deposition that he did not apply the brakes at all. The requested interrogatories were stated in terms such as “could affect,” “could result,” “may have been” and “may have caused.” These interrogatories, regardless of the answers, would not have produced evidence of sufficient force to remove the case from the realm of speculation and conjecture. There being no specific finding of fact, and no request for such, we presume the court overruled the request to compel discovery because the interrogatories were onerous, unreasonably burdensome, cumulative or immaterial, or for other valid reason. We are unable to declare the trial court clearly erroneous in ruling the answers to the interrogatories would not change the status of the litigation.

Affirmed.

Hays, J., dissents.

Dudley and Hollingsworth, JJ., not participating.

Steele Hays, Justice,

dissenting. I fail to see how we can sustain a summary dismissal of appellants’ cause of action when interrogatories to the appellees have not been answered. Whether the interrogatories would succeed in producing probative evidence can ’ t be j udged in the absence of responses and the appellants were entitled to have the benefit of that information before their claims are dismissed.


author: John I. Purtle, Justice.

text:
    ARKANSAS OIL AND GAS, INC. v. DIAMOND SHAMROCK CORPORATION
    83-250
    662 S.W.2d 824
    Supreme Court of Arkansas
    Opinion delivered January 16, 1984

      Dale S. Braden and Martin, Vater ¿r Karr, by: Charles Karr, for appellant.

      Warner & Smith, by: Joel D. Johnson and G. Alan Wooten, for appellee.
   John I. Purtle, Justice.

Appellant petitioned the Chancery Court of Pope County, Arkansas, to declare a partial cancellation of an oil and gas lease. After a trial the court held that appellee was not in default and declared the lease to be valid.

For its appeal the appellant simply argues the court erred in failing to grant immediate partial cancellation of the lease. We do not find that the chancellor was in error.

On July 22, 1977, Dale Braden executed an oil and gas lease to Diamond Shamrock for lands located in Sections 5, 6, 7 and 8, T9N, R20W, Pope County, Arkansas. The lease was for the primary term of five years beginning on August 11,1977. The lease contained a clause stating the lease would be extended “. . . as long thereafter as oil, gas or other mineral is produced from said land or gas is produced from a consolidated gas leasehold estate which includes all or any part of said land.” On July 12, 1982, the appellee spudded a well on that part of the lease located in Sections 5 and 8. Sections 6 and 7 were not included in this drilling unit and no well was spudded on this portion of the lease prior to expiration of the 5-year lease. Two days after the primary lease period expired Dale S. Braden demanded that appellee commence and drill to completion a well on land located in Sections 6 and 7 or immediately release such land from the lease. Appellee replied, on August 20, 1982, that it would evaluate Powers #1-8 (the well on lands in Sections 5 and 8) with other wells in the area to determine the feasibility of drilling another well on Sections 6 and 7. Braden leased the lands in these two sections to Arkansas Oil and Gas on September 8, 1982, for a bonus consideration of $150 per net mineral acre plus 3/16 royalty. The original lease to appellee was for $10.00 per net mineral acre.

On October 17, 1982, appellant filed its petition for declaratory judgment praying the lease as to land in Sections 6 and 7 be cancelled and it be awarded damages because appellee interfered with appellant’s executive right to execute a new mineral lease with clear title. Subsequent to suit being filed by appellant the Powers #1-8 well was completed as a producer. Trial was held in the present case on February 17, 1983, and the chancellor found appellees were entitled to a reasonable time to develop the lease and that a reasonable time in this case would be until January 1, 1984. The court retained jurisdiction to enforce the order.

When royalties constitute the chief consideration for an oil and gas lease, there is an implied covenant that the lessee will explore and develop with reasonable diligence. Smart v. Crow, 220 Ark. 141, 246 S.W.2d 432 (1952). The duty to explore extends to the entire tract. Byrd v. Bradham, 280 Ark. 11, 655 S. W.2d 366 (1983). This duty especially applies when paying units have been drilled on parts of the tract. Standard Oil Company of Louisiana v. Giller, 183 Ark. 776, 38 S.W.2d 766 (1931). The lessee has the right to decide when and where to drill but he must not act arbitrarily. He should promote the interest of both parties. Ezzell v. Oil Associates, Inc., 180 Ark. 802, 22 S.W.2d 1015 (1930). Reasonable diligence is the standard to be used in determining whether a lessee has breached the implied obligation to develop. Byrd, supra and Ezzell, supra.

There is no doubt but that failure to explore and develop is ground for cancellation of the lease under some conditions. Smith v. Moody, 192 Ark. 704, 94 S.W.2d 357 (1936). Production on part of the lease does not justify allowing the lessee to hold the balance of the leased lands indefinitely thereby denying lessor the right to lease to others. Nolan v. Thomas, 228 Ark. 572, 309 S.W.2d 727 (1958).

Obviously royalties constituted the chief consideration in the lease between appellee and Braden. Therefore, the appellee was under a duty to develop and explore with reasonable.diligence. Here the first well was spudded during the primary period of the lease and the well developed into a producer. Appellee told the original lessor it was comparing data and intended to drill another well. Suit to cancel the lease was filed shortly after the primary lease period expired and before production commenced on the well drilled on part of the lease. Braden, a lawyer, had considerable experience in dealing with oil and gas leases. We do not think the chancellor was clearly erroneous in finding that appellee would not breach the implied covenant to use reasonable diligence if it commenced drilling by January 1, 1984.

Affirmed.


text:
    Doyle D. HOLT v. STATE of Arkansas
    CR 83-114
    662 S.W.2d 822
    Supreme Court of Arkansas
    Opinion delivered January 16, 1984

      Lessenberry ir Carpenter, by: Thomas M. Carpenter, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Dep. Atty. Gen., for appellee.
   John I. Purtle, Justice.

This is an appeal from the decision of the Sebastian County Circuit Court’s refusal to grant appellant’s petition for Rule 37 relief. We find no prejudicial error in the record.

Appellant timely filed a petition for relief pursuant to A.R.Cr.P. 37.1 in which he alleged the trial court failed to ascertain a factual basis for appellant’s guilty plea. He also alleged that the court was without subject matter jurisdiction to sentence him for offenses which did not occur in the State of Arkansas and that trial counsel was ineffective in defending him.

The trial court denied appellant’s petition without a hearing. The record reveals the trial court considered matters discussed at the plea and sentencing hearing and also matters discussed at an earlier pre-trial hearing.

The record reveals the trial court informed appellant of the nature of each charge, of the minimum and maximum sentences possible, that a guilty plea terminated his right to a jury trial, and of other consequences of his plea. The appellant affirmatively acknowledged he understood all the ramifications of his guilty plea. The record of the sentencing proceeding does not show that the state proved the crimes were committed in Arkansas. The information alleges the crimes were committed in the Greenwood District of Sebastian County, Arkansas.

The record clearly reveals appellant was aware of the nature of the offenses charged and of the possible penalties. He stated he understood all the consequences of a guilty plea. A collateral attack on a guilty plea does not reach the merits of a claim of deprivation of constitutional rights prior to entry of the plea. Horn v. State, 254 Ark. 651, 495 S.W.2d 152 (1973). If the plea was intelligently and voluntarily entered and was not the result of ineffective assistance of counsel, it is final and binding unless the trial court lacked jurisdiction. Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980).

The only serious question presented in this appeal is that of jurisdiction. Without jurisdiction the judgments would be void and therefore subject to collateral attack even beyond the three year limit on other Rule 37 petitions. However, conclusory allegations are insufficient to place the matter in issue. Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982). The facts clearly establish that the offenses of possession of a prohibited weapon and felon in possession of a firearm occurred in appellant’s home in Arkansas at the time of his arrest by officers in Sebastian County, Arkansas. The information filed on the rape and carnal abuse charges alleged the offenses occurred in the Greenwood District of Sebastian County, Arkansas. Neither the abstract nor the brief filed in this appeal states the offenses occurred in any other jurisdiction. The allegation and argument simply state the court was without subject matter jurisdiction. In view of Ark. Stat. Ann. § 41-110 (2) (Repl. 1977) and our opinion in the case of Richards v. State, 279 Ark. 219, 650 S.W.2d 566 (1983) the state is presumed to have jurisdiction unless evidence is admitted affirmatively showing lack of jurisdiction or venue.

The record refutes the allegation of lack of a factual basis for acceptance of the guilty plea as well as the claim of lack of jurisdiction in the trial court. There is no allegation abstracted indicating that the rape and carnal abuse occurred outside Arkansas. Since the information alleged the offenses occurred in Arkansas, trial counsel had no duty to challenge the jurisdiction of the court unless he had knowledge to the contrary. It is not alleged that trial counsel possessed such knowledge. We find nothing before us which overcomes the presumption of competency of trial counsel. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981).

Affirmed.


author: Robert H. Dudley, Justice.

text:
    ARKANSAS NEWSPAPER, INC., an Arkansas corporation, d/b/a COURIER DEMOCRAT, and Laura SHULL v. John S. PATTERSON, Circuit Judge
    83-190
    662 S.W.2d 826
    Supreme Court of Arkansas
    Opinion delivered January 16, 1984

      Alex G. Streett, for petitioners.

      Steve Clark, Atty. Gen., by: Curtis L. Nebben, Asst. Atty. Gen., for respondent.
   Robert H. Dudley, Justice.

A fifteen year old boy was charged with capital murder and, in the pretrial proceedings, the circuit judge closed two hearings and ordered a written motion sealed. The petitioners, the Courier Democrat of Russellville and Laura Shull, a newspaper publishing company and a newspaper reporter, contend that the closing of pretrial hearings is prohibited on account of Ark. Stat. Ann. § 22-109 (Repl. 1962), which provides: “The sitting of every court shall be public, and every person may freely attend the same.” They ask this court to issue a writ of mandamus directing JohnS. Patterson, the judge, to cease excluding reporters from any part of criminal proceedings. We deny the writ. Jurisdiction is in this Court under Rule 29 (l)(f).

In Arkansas Television Company v. Tedder, Judge, 281 Ark. 152, 662 S.W.2d 174 (1983), we weighed the above quoted statute, the First Amendment and the Sixth Amendment, and held that pretrial hearings should be open to the public unless the proponent of closure demonstrates “a substantial probability that (1) irreparable damage to the defendant’s fair trial right will result from an open hearing and (2) alternatives to closure will not adequately protect the right to a fair trial. Additionally, the trial court’s findings must be articulated and sufficiently specific to demonstrate on review that these requirements have been satisfied.” The reasoning and the holding of Arkansas Television are controlling in the case now before us. The pretrial hearings should not have been closed because the standard set out in Arkansas Television was not met.

Not specifically considered in Arkansas Television, but arising in this case, is the propriety of an order sealing a written pretrial motion. Petitioners contend that, pursuant to the Freedom of Information Act, Ark. Stat. Ann. §§ 12-2801 —12-2807 (Repl. 1979), the motion, when filed, became a part of the public records and public records must remain open for inspection and copying by any citizen. The argument is without merit. First, as a practical matter, it would be farcical to hold a closed hearing after the motion setting out the reasons for the closed hearing had been made public. Secondly, the Freedom of Information Act specifically provides that documents which are protected from disclosure by order or rule of court are not required to be open for inspection and copying. Ark. Stat. Ann. § 12-2804 (Repl. 1979). This provision avoids any conflict with the Sixth Amendment and prevents any entanglement in the separation of powers doctrine.

The general rule remains that pretrial proceedings and their record must be open to the public, including representatives of the news media, and before an exception to that general rule is made, the test set out in Arkansas Television must be met. If that standard is met and a pleading is ordered sealed, it must be opened to the public as soon as the probability of irreparable damage to the accused’s right to a fair trial no longer exists. While the standard was not met in the case before us, the conclusion of the trial renders a writ of mandamus an ineffective remedy.

Writ is denied.

Justice Purtle dissents for the same reasons set out in his dissenting opinion in Arkansas Television Company and Beasley v. Tedder, Judge, 281 Ark. 152, 662 S.W.2d 174 (1983).


text:
    Michael BETHEL v. STATE of Arkansas
    662 S.W.2d 828
    Supreme Court of Arkansas
    Opinion delivered January 16, 1984

      Shaw, Shaw & Ryan, by: Jerry Ryan, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Deputy Atty. Gen., for appellee.
   Per Curiam.

Appellant Michael Bethel, by his attorney, Jerry Ryan, has filed a motion for rule on the clerk. The motion admits that the record was not timely filed and it was no fault of the appellant. Appellant’s attorney, in the motion and in the accompanying memorandum, further admits that he miscalculated the time in which to file his client’s transcript.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases.

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


author: Richard B. Adkisson, Chief Justice.

text:
    Donald Everett LEWIS v. STATE of Arkansas
    CR 83-122
    663 S.W.2d 177
    Supreme Court of Arkansas
    Opinion delivered January 23, 1984

      William R. Simpson, Jr., Public Defender, Jerome Kearney, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Dep. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

In a trial by jury, appellant, Donald Everett Lewis, was found guilty of aggravated robbery and theft of property. The trial court sentenced him to twenty-five years for the robbery and ten years for theft, the sentences to run consecutively. On appeal appellant argues that the trial court erred in refusing to suppress evidence of appellant’s lineup identification, arguing that he was deprived of his absolute right to counsel of his choice at the lineup. We affirm the trial court.

A. E. Richardson had parked in front of his son’s house at 519 West 19th Street and was setting up a ladder to do some work when an unmasked man approached him with a gun. The man demanded Mr. Richardson’s wallet, ring, and watch and threatened to shoot him. He then took Mr. Richardson’s car keys and drove off.

Several days later, but prior to the filing of the information, appellant participated in a lineup. After appellant was advised of his rights to have counsel present, appellant requested a specific attorney. When the attorney of his choice refused employment, appellant declined assistance from the public defender. Appellant was positively identified at the lineup and again in open court by the victim.

An accused is not entitled to assistance of counsel at a lineup conducted before the commencement of prosecutorial proceedings against him. King v. State, 253 Ark. 614, 616, 487 S.W.2d 596, 598 (1972), citing Kirby v. Illinois, 406 U.S. 682 (1972). Even so, appellant was offered the services of the public defender when the counsel he had selected refused to represent him. Under these circumstances, the trial court did not err in refusing to suppress evidence of appellant’s lineup identification.

Affirmed.


author: Richard B. Adkisson, Chief Justice. John I. Purtle, Justice,

text:
    Harold Gene ROBERTS v. STATE of Arkansas
    CR 83-150
    663 S.W.2d 178
    Supreme Court of Arkansas
    Opinion delivered January 23, 1984

      David Rees, for appellant.

      Steve Clark, Atty. Gen., by: VictraL. Fewell, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

A Craighead County jury found appellant, Harold Gene Roberts, guilty of burglary and theft of property and fixed his punishment at the maximum term of twenty years for each offense. The trial court ordered the sentences to run consecutively. On appeal appellant contends the trial court erred in refusing to instruct the jury on the offense of theft by receiving, arguing that theft by receiving is a lesser included offense of theft of property. Appellant also contends the sentence was excessive.

Ark. Stat. Ann. § 41-2202 (Repl. 1977) consolidates the theft offenses, providing: “Conduct denominated theft in this Chapter [§§ 41-2201 — 41-2208] constitutes a single offense embracing the separate offenses heretofore known as larceny, embezzlement, false pretense, extortion, blackmail, fraudulent conversion, receiving stolen property, and other similar offenses.”

Even so, we agree with the trial court’s rationale that, under the facts of this case, the instruction of theft by receiving was not justified. Ark. Stat. Ann. § 41-105(3) (Repl. 1977) provides: “The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” See also Lovelace v. State, 276Ark. 463, 637 S.W.2d 548 (1982); Lewis v. State, 267 Ark. 933, 591 S.W.2d 687 (Ark. Ct. App. 1980).

The evidence established that scrapes and pry marks appeared on only one storm window, apparently the point of entry of the home. Appellant’s fingerprints appeared on the same storm window. Further testimony established that an earring worn in appellant’s ear was identical to one of a distinctive matched pair kept with the other stolen j ewelry. The mate was not stolen. Appellant’s request for an instruction on the offense of theft by receiving was inconsistent with appellant’s own proof. The record reflects that appellant called three alibi witnesses to establish he had committed no theft and that he had been in possession of the matching earring for several years. Since appellant’s position was that he was innocent of any theft, his request for the lesser-included offense of theft by receiving was not rational. Under the facts of this case, we conclude the trial court was not obligated to charge the jury with respect to the lesser offense.

As to appellant’s contention that the sentence was excessive, this court has previously held that we will not reduce or compare sentences which are imposed within statutory limits. Kaestel v. State, 274 Ark. 550, 554-55, 626 S.W.2d 940, 943 (1982). It was within the trial court’s discretion to impose the sentences consecutively. Swaite v. State, 272 Ark. 128, 136-37, 612 S.W.2d 307, 311 (1981). The cumulative effect of consecutive sentences does not make punishment cruel and unusual. Thompson v. State, 280 Ark. 265, 270, 658 S.W.2d 350 (1983). Accordingly, we conclude this is without merit.

Affirmed.

Purtle and Hollingsworth, JJ., dissent.

John I. Purtle, Justice,

dissenting. The jury should have been instructed that it could find the appellant guilty of theft by receiving. He sat before them wearing the purportedly stolen earring. It makes no difference which side offers evidence; the jury should consider it all. Theft by receiving was no more inconsistent with appellant’s proof than was burglary. He contended he was guilty of neither. How can he be less “not guilty” of receiving than of burglary? Why then should an instruction on burglary have been given? It was just as inconsistent with appellant’s own proof as an instruction on theft by receiving.

Have we abandoned the age old rule of law which upholds no right to be more seriously protected by this court than the right of an accused to have the jury instructed on lesser offenses included in the more serious offense charged? Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980). Caton & Headley v.State, 252 Ark. 420, 479 S.W.2d 537 (1972); Walker v. State, 239 Ark. 172, 388 S.W.2d 13 (1965); Bailey v. State, 206 Ark. 121, 173 S.W.2d 1010 (1943); Smith v. State, 150 Ark. 193, 233 S.W. 1081 (1921); Allison v. State, 74 Ark. 444, 86 S.W. 409 (1905); and Davis v. State, 72 Ark. 569, 82 S.W. 167 (1904). When there is the slightest evidence to warrant it, a lesser included offense instruction should be given. Brewer v. State, supra; Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979); Walker v. State, supra; and King v. State, 117 Ark. 82, 173 S.W. 852 (1915).

If there is a rational basis for the lesser included instruction, it should be given. Moore & Jones v. State, 280 Ark. 222, 656 S.W.2d 698 (1983); Brewer v. State, supra; Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981); Glover v. State, 273 Ark. 376, 619 S.W.2d 629 (1981); and Ark. Stat. Ann. § 41-105(3) (Repl. 1977).

There is no need for me to cite additional cases for the proposition that this instruction should have been given. If a stolen earring in the undisputed possession of an accused is not evidence of theft by receiving, it is only because the accused admits the theft. If he admitted the theft, no jury would be trying to determine his guilt or innocence. If it is admitted that appellant did not have possession of the stolen earring or that it was not stolen, then it was proper to refuse the instruction. Otherwise it should have been given.

Hollingsworth, J., joins in this dissent.


text:
    Ann Marie BENNETT, Avis WALKER, Linda HAMPTON, James Paul ROGERS, William Clyde ROGERS & Letha ROGERS v. Ewell HENDERSON et al
    83-225
    663 S.W.2d 180
    Supreme Court of Arkansas
    Opinion delivered January 23, 1984

      James R. Pate, for appellants.
    /. H. Evans, for appellees Ewell Henderson and Anna Laura Henderson.
   John I. Purtle, Justice.

A petition for declaratory judgment was granted by the chancellor. The decree held that the handwritten words on the margins of several deeds were ineffective for the purpose of severing mineral rights from the land. No testimony was taken by the court. On appeal it is argued that the court erred in refusing to take oral testimony and that the handwriting on the deeds constituted reservations of mineral rights. We cannot agree with either argument.

In 1937, W. S. Rogers deeded property to three of his children and the widow of a deceased son. Four separate deeds were executed and delivered. The deeds were standard form warranty deeds granting estates in fee except for reservations of life estates in the grantor. In the left hand margin of each deed Rogers wrote: “Each heir shall share equally in the underground minerals.” The questions before the court are whether the handwritten words created separate estates and whether the chancellor erred in refusing to hear oral testimony relating to the intent of the decedent. If the writing in the margins of the deeds reserved the mineral rights to W. S. Rogers, the rights would be owned by his heirs because he died intestate. If the writings were attempted wills, they are obviously ineffective because of lack of witnesses.

In interpreting a deed we give primary consideration to the intent of the grantor. Buford v. Dearing, 255 Ark. 538, 500 S.W.2d 931 (1973). The intention of the grantor is ordinarily gathered from the language of the entire deed. Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974); Carter Oil Co. v. Weil, 209 Ark. 653, 192 S.W.2d 215 (1946). We resort to rules of property or rules of construction only when the language of the instrument is ambiguous, uncertain or doubtful. Barnes v. Barnes, 275 Ark. 117, 627 S.W.2d 552 (1982). In such case the instrument is construed against the party who prepared it. Gibson, supra. The courts should strive to harmonize all parts of a deed. Wynn v. Sklar & Phillips Oil Co., 254 Ark. 332, 493 S.W.2d 439 (1973). If clauses in a deed are irreconcilable, the courts will construe that part of the deed to precede which ought to take precedence. Carter Oil Co. v. Weil, supra.

We had a very similar factual situation in Buford v. Dearing, supra. The deed in Buford was a fee simple warranty; however, the grantor inserted, after the description, his handwritten notation: “This is my will, and the herein described land is to be conveyed to my son, Buford Dearing, at the death of Evia Lee Dearing.” We held that the handwritten note was repugnant to the deed which clearly conveyed a fee simple title. The note, an ineffective attempt to make a will, was surplusage and expressed an ineffective wish.

In the case before us it is clear that the deeds, without the marginal notations, conveyed a fee simple to each grantee. Without the disputed clause the intention of the grantor is very obvious. Each grantee took the mineral rights along with the land.

One of the grantees in the original deeds was not an heir of the grantor. Therefore, the notation could not have included her as an heir of the grantor. It is possible the grantor intended to reserve the minerals for his grandchildren, the children of each grantee. We do not know what was in his mind but it is not necessary to determine his intent as it related to this clause because any meaning inconsistent with granting a fee simple interest would be repugnant to the deed itself. We think the chancellor correctly refused to hear testimony concerning the intent of the grantor. Giving the deed in chief its obvious and clear interpretation there is no need to hear parol evidence. The deed is not at all ambiguous. It needs no construction. Whether the marginal notations are attempted wills or something else, they are mere surplusage. We need not define the intention of the grantor when there is no reasonable basis for questioning the words of the deed. Buford v. Dearing, supra.

Affirmed.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    Leonard BURRIS, Administrator of the Estate of Margaret Ruth SCUDDER, Deceased v. Honorable Henry BRITT, Circuit Judge
    83-219
    663 S.W.2d 715
    Supreme Court of Arkansas
    Opinion delivered January 23, 1984
    [Rehearing denied February 27, 1984.]

      H. David Blair, Troy Henry, and Lohnes Tiner, for petitioner.

      Steve Clark, Atty. Gen., by: Kay J. Jackson Demailly, Asst. Atty. Gen., for respondent.

      Purtle and Hays, JJ., would grant rehearing. Adkisson, C.J., not participating.

   Robert H. Dudley, Justice.

Petitioner, Leonard Burris, is the administrator of the estate of Margaret Ruth Scudder, deceased, and is the plaintiff in a wrongful death case now pending in the Circuit Court of Jackson County. The regular judge of the Circuit Court of Jackson County, Andrew G. Ponder, recused himself from hearing the case because of his personal relationship with one of the litigants. Shortly afterwards, Albert Graves, the regular circuit judge of another circuit was assigned by the Chief Justice to this case as a judge on exchange under the authority of Ark. Stat. Ann. § 22-142 (Supp. 1983). Prior to the trial, Judge Graves’ term of office ended and his appointment was terminated. The Chief Justice then assigned Henry Britt, a retired circuit judge and the respondent in this petition, to try the case as a circuit judge on recall and assignment pursuant to Ark. Stat. Ann. § 22-910 (Supp. 1983). Petitioner has filed a suggestion of disqualification on the ground that respondent is not a circuit judge as defined by the Constitution of Arkansas. Respondent has refused to disqualify himself from the assignment. We hold the respondent’s exercise of jurisdiction of the office of circuit j udge over petitioner is invalid and grant the writ of mandamus. Jurisdiction is in the Court pursuant to Rules 29(1 )(c) and (f).

Procedurally, this is a direct appeal questioning the qualifications of respondent to exercise jurisdiction over petitioner. It is not a collateral attack upon the exercise of jurisdiction. See, Pope v. Pope, 239 Ark. 352, 389 S.W.2d 425 (1965).

Substantively, the constitution specifically provides two modes for replacing the regular circuit judge when that judge recuses from the trial of a case. See Ark. Const. Art. 7, §§21 and 22. Since the modes are expressly set out they are exclusive of all other methods of temporarily replacing a circuit judge and a statute providing a different method is unconstitutional. State v. Green, 206 Ark. 361, 175 S.W.2d 575 (1943). The issue is whether respondent is serving under the authority of either of the constitutional provisions.

Ark. Const. Art. 7, § 21, the special judge section, provides that if the regular circuit judge becomes disqualified the regular practicing attorneys in attendance at court may elect a special judge to preside. See also, Rule 17, Uniform Rules of Circuit and Chancery Courts. Respondent was not elected as a special j udge and does not qualify under the aegis of this section.

Ark. Const. Art. 7, § 22, the judge on exchange section, provides, “The judges of the circuit courts may temporarily exchange circuits or hold courts for each other under such regulations as may be prescribed by law.” Ark. Const. Art. 7 & 17, with precise stricture, defines the term of office of the circuit courts: “The judges of the circuit court shall be elected by the qualified electors of the several circuits, and shall hold their offices for the term of four years.” Respondent’s term of office has expired. He no longer holds the office of judge of circuit court. He is a retired judge "and does not qualify under the authority of this section of the constitution.

The General Assembly does not have the power to enlarge the term of office of a circuit judge, State ex rel. Smith v. Askew, 48 Ark. 82, 2 S.W. 349 (1886). The statute at issue, Ark. Stat. Ann. § 22-910 (Supp. 1983), providing for the recall and assignment of a retired judge, cannot enlarge the past term of office which was held by respondent.

A writ of mandamus is issued ordering respondent to disqualify from presiding as circuit judge over the trial.

Purtle and Hays, JJ., dissent.

Adkisson, C.J., not participating.

John I. Purtle, Justice,

dissenting. The judicial powers of the State of Arkansas are vested in the Judicial Department. Art. 4, Sec. 1, Constitution of 1874. The powers of the Judicial Department are vested in the Supreme Court and the inferior courts. Art 7, Sec. 1. The Supreme Court of Arkansas has general superintending control over all inferior courts of law and equity. Art. 7, Sec. 4.

In Vance v. Austell, 45 Ark. 400 (1885) this court held that the Constitution was not so much a grant of powers but rather a limitation of power. At page 408 the opinion states:

But the constitution of a state is not a grant of enumerated powers. Its chief object is to impose limitations upon the several departments of government. We look to it, not so much to see whether a contested enactment is authorized, but whether it is prohibited. For, if not prohibited either by the letter or the spirit of the fundamental instrument, it is authorized.

Certainly it cannot be logically argued that the Constitution, at least in the articles and sections mentioned herein, prohibits the Judicial Department or the Supreme Court ¡from doing exactly what was done in the present case. The facts that the legislature has provided for this type of appointment and the Judicial Department and Chief Justice of this court complied are reason enough to sustain the appointment.

The efficient administration of justice is mandated by the Constitution, the laws and public policy. The people have divided the powers of government and vested the judicial powers in the Supreme Court and inferior courts. Art. 7, Sec. 1.

There is no other way to keep the administration of Justice flowing without serious delay and congestion of trial dockets. Certainly the people did not expect to have to change the Constitution in order to keep the court dockets up to date. There is no provision for splitting and dividing the various judicial districts or for providing law clerks, for that matter. Nevertheless, we do these things in order to accomplish the objectives invested in us by the people of Arkansas.

The majority is here holding that the Constitution of Arkansas is a grant of powers by the people. Although I agree with that theory, it is contrary to Vance v. Austell and its progeny. This opinion has not been overruled during the hundred years after its rendition. Today it has!

I would deny the writ.

Hays, J., joins in this dissent.


author: Steele Hays, Justice. John I. Purtle, Justice,

text:
    Charles JOHNSON, Washington County Judge, and the WASHINGTON COUNTY QUORUM COURT v. Gordon L. CUMMINGS
    83-198
    663 S.W.2d 168
    Supreme Court of Arkansas
    Opinion delivered January 23, 1984

      Ginger Parker Crisp, Washington County Attorney, for appellants.

      Davis, Cox ir Wright, by: William Jackson Butt, II, for appellee.
   Steele Hays, Justice.

This case involves an interpretation of Amendment 17 to the Arkansas Constitution which vests in the electors the power to authorize the construction of a county courthouse, jail or hospital. The Chancery Court enjoined the appellants, the County Judge and Quorum Court of Washington County, from entering into any contract or purchasing any land to be used to construct a county jail until the construction of the jail is approved by the voters. On appeal, we affirm the Chancellor.

This dispute began when a consent order was entered in federal court suspending action to declare the Washington County jail unconstitutional, to allow the county time to decide whether to construct a new jail or remodel the existing one. After several months of investigation by a Jail Advisory Board the Washington County Quorum Court proposed to build a new jail and passed a resolution authorizing negotiations to purchase a twenty-two acre tract of land. The land was to be paid for with existing county funds. Construction of the new jail was to be paid for over a period of years partly with existing revenues and partly with funds to be raised through a millage increase. Appellee, a taxpayer and citizen of Washington County, petitioned to enjoin the County Judge and the Quorum Court from entering into any contract for the purchase of the land until the requirements of Amendment 17 were met. The Chancery Court held that the land was being purchased solely for the purpose of constructing a jail and, therefore, purchase of the land required voter approval under Amendment 17. At the subsequent election, the voters defeated the proposal to build a new jail by a vote of 7,797 to 3,214 and also rejected the proposed building tax by a vote of 7,761 to 3,053.

The appellants raise two issues on appeal: (1) they argue that Amendment 17 requires voter approval only when the construction is to be financed by a millage increase and not when existing funds are to be used, as here; and (2) they maintain the Chancellor erred in finding that when land is purchased solely for the purpose of erecting a jail; such purchase should be interpreted as “construction” within the meaning of Amendment 17.

Amendment 17 provides:

The power and right is hereby vested in the qualified electors of each respective County in this State by a majority of the said electors voting on the question, to authorize the construction, reconstruction, or extension of any County Court House, County Jail, or County Hospital, and to authorize the levy of a tax not to exceed one-half of one per cent on the dollar of the valuation of all properties in such County subject to taxation to defray the costs and expenses thereof, or to take up any indebtedness existing at the time of adoption hereof incurred in building, construction, or extending any County Court House, Jail, or Hospital.

Addressing the second point, appellants contend that the purchase of land does not violate Amendment 17 because “construction” does not occur simply because land is purchased. We agree that ordinarily a prohibition against “construction” of a jail is not tantamount to a prohibition against purchasing land, as Amendment 17 does not purport to restrain a county government from purchasing land for use by the county. But the significance here is that the Chancellor found on undisputed proof that the sole purpose for the purchase of the land was to build the jail, and that fact brings the project within the prohibition of Amendment 17. If it were otherwise, the provisions of the Amendment could conceivably be circumvented by the simple expediency of constructing jails (or courthouses) in phases, year by year, as funds become available. We have no hesitancy in holding that it was not the intent behind Amendment 17 to permit that kind of financing. We think the Amendment means the county may not undertake the construction of the three facilities covered by Amendment No. 17 except where it has the necessary funds on hand, unless the voters have approved. The case of Carter v. Cain, 179 Ark. 79, 14 S.W.2d 250 (1929), notes the fallacy of such a concept in quoting the history behind the adoption of Amendment 17. In 1925, before Amendment 17 was adopted, the case of Kirk v. High, 169 Ark. 152, 273 S.W. 389 was decided, where we approved the construction of a courthouse for Lonoke County notwithstanding Amendment No. 11. The courthouse was to cost $150,000 and was to be paid for in twenty annual installments not exceeding $10,000 in any one year, to be paid for with annual millage increases. In Carter, we said:

After the court had construed this Amendment No. 11 to mean that a county could go in debt for courthouses and jails, the people then adopted Amendment No. 17, vesting the authority and right to construct courthouses and jails and to levy taxes to pay for them, in the qualified electors of the county. Amendment No. 17 was evidently adopted for the very purpose of meeting the decision of this court and accomplishing what they thought was accomplished by Amendment No. 11, when adopted. That is, to prevent counties from going in debt, and provide a method for building and paying for courthouses and jails, (our italics.)

The appellants point out that without a building site, essential cost estimates are not possible. But all that is required under Amendment 17 is “such plans, specifications or estimates of cost as may be proper for a reasonable understanding of the nature, extent and approximate cost of the contemplated improvement.” Davis v. Waller, County Judge, 238 Ark. 300, 379 S.W.2d 283 (1964). Appellants’ argument that the county would save money by buying the land now instead of waiting until after an election when prices may be higher applies with equal force to the purchase of all of the building materials. Yet such a purchase before voter approval is received would plainly violate Amendment 17. The voters could have a “reasonable understanding” of the cost of the proposed construction if, included in the cost estimate, is the price of the property upon which the county hopes to erect the jail. The actual purchase of the land before the election is both unnecessary and premature.

The appellants cite Act 60 of 1972 as codified in Ark. Stat. Ann. § 17-924 (Repl. 1980) which provides that:

[N]o vote of the electors of the county shall be necessary to authorize the construction, ... of such county jail facilities or for the expenditure of county general funds therefor, provided current operating funds are available for such purposes and provided further that county funds expended . . . are matched with an equal or greater amount of federal funds.

Act 60 is inapplicable here because federal funds are not on issue in the matter before us. However, the text following the statute contains the legislative purposes behind the Act. According to the text, the purpose of Amendment 17 was to:

. . . prohibit counties from undertaking the construction or improvement of jails without approval of the people with respect to the funding of bonded indebtedness therefor. . . . Therefore, the General Assembly concludes that counties of this State should be permitted to use available surplus operating moneys to construct or make necessary improvements to county jails . . .
. . ,[A]pproval of the electors of the county . . . to . . . construct ... a county jail ... is not required where moneys used for such improvements are made available from . . . existing surplus funds. . . .

The appellants maintain that Act 60 interprets Amendment 17 as not requiring an election before the county can purchase land in this case. But the argument fails for several reasons. First, on the one hand, appellants urge that the mere purchase of land is not “construction” within Amendment 17. On the other, they argue that it is “construction,” but that Act 60 does not require voter approval before the purchase can be made. Second, the “construction” is not being financed with “available surplus operating money,” only the initial purchase of land. And finally, as we stated in Blalock v. Miller, 175 Ark. 98, 298 S.W. 995 (1927):

If the Legislature could change the meaning of the amendment as construed by the court and make it mean something else than its plain meaning, then the amendment had just as well never have been passed. Such a course would place an act of the Legislature above the Constitution. The meaning of a provision of the Constitution or amendment thereto having been declared by the court, it is plainly not within the power of the Legislature to change the meaning by statute.

Although Carter states that Amendment 17 provides for the submission to the voters of both questions, i.e. the improvement and the tax, there is another weakness in the appellants’ argument. Their appeal is based on the fact that the land was to be purchased with existing funds, whereas the construction costs were to be paid from a combination of existing funds and millage increases. There is no question but that the election would have been necessary before jail construction could begin, which appellants concede. Hence, the purchase of the land was merely the first step in the building of the new jail, not a separate, unrelated act. Since the overall project of building a county jail necessitated a millage increase, it comes squarely within the provisions of Amendment 17 and an election is mandatory.

Turning to the remaining point, the language of Amendment 17 provides a clear procedure whereby the electors of a county can vote on whether or not to authorize construction of a jail, courthouse or hospital to be funded by a tax increase. The question is whether Amendment 17 prohibits the purchase of lands from existing funds for use as a jail site where admittedly the county does not have funds to construct the jail. In Carter v. Cain, supra, we addressed essentially identical issues. There, it was argued that Amendment 17 provides a county with two distinct and unrelated methods of building a courthouse: “one plan with additional taxes, and the other without additional taxes.” We rejected the contention and said:

Amendment 17 authorizes the county court to determine the necessity of building a courthouse or jail and to have plans and specifications made, and to submit the question to the people. It is insisted that, if the county has money on hand to build the courthouse, or, rather, if they have some money and can pay it out in annual installments, then No. 17 does not apply. If they have no money, then the people may determine whether they shall have a courthouse or jail.
In the first place, the amendment provides for submitting both questions to the electors. They shall vote for the construction or against the construction, and also vote for tax or against tax. In other words, the qualified electors are to determine whether there is to be any improvement made, and also to vote for or against a tax for the purpose of paying for the improvement.

It is true that in Carter v. Cain, we said that if a county has the money to build a courthouse there would be no occasion to submit the question to the voters. But that does not mean a county may build a courthouse in yearly stages out of its surplus. Washington County does not have the money to build a jail, it only has the money to buy land on which the appellants hope to build a jail. And, if the county buys the land and the voters then reject the proposed construction, the consequence is the county has made a needless investment in land for which it has no present use.

In Carter, this Court noted that the word “vested” carried a special emphasis, that in Amendment No. 17 the people “vested” in themselves “the power and right” to authorize the construction of jails and courthouses, which we said was “the entire power,” and a “complete and consummated right.” We think the plan proposed by appellants is inconsistent with that language and with the spirit of the amendment. The Chancellor correctly held that a county may not accomplish in piecemeal fashion what the amendment purports to prohibit in its entirety.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I agree with the majority that the language of Amendment 17 is clear. However, I cannot agree that it clearly prohibits the purchase of land upon which a jail or other facility may be constructed. There is absolutely no mention of purchasing lands in the Amendment. The majority rely on Carter v. Cain, 179 Ark. 79, 14 S.W.2d 250 (1929) as precedent for the decision handed down today. The only resemblance to the present case is that both cases were argued upon the interpretation of Amendment 17. Carter involved the construction of a courthouse, not acquisition of lands. Although I disagree with the interpretation of Amendment 17 in the Carter case, I find it is not inapposite in the present case.

Amendment 17 provides that the people shall vote “for construction” or “against construction” and “for tax” or “against tax.” There is no provision for voting for the purchase of land. Washington County is under a federal court order to do something to improve its jail, and this court is assisting in putting the county officials in contempt of the federal court. It is not the business of this court to go about telling the counties and cities, or the state for that matter, how to spend their money. While relying on Carter, the majority ignore a passage (at page 89) which states:

If the county had money with which to build a courthouse or jail, there would of course be no occasion to submit the question to the qualified electors as to whether they would or would not vote a tax. No tax would be necessary.

Carter also held that in construing a constitutional amendment, courts should give words their most natural and obvious meaning. There is no dictionary or other book or writing including any trade publication which defines “construction,” “reconstruction,” or “extension” to include a purchase of land. To give such construction to these ordinary words is to ignore the rule set forth in Carter and hundreds of other cases since decided by this court.

The Arkansas General Assembly attempted to remove any doubt about construction of jails and courthouses when it enacted Act 60 of 1972. This statute [Ark. Stat. Ann. § 17-924 (Repl. 1980)] attempted to clarify Amendment 17 as it relates to authority to construct county jails from funds on hand and grants received. This statute (set out in part in the majority opinion) specifically states that counties may construct and/or improve jails when there is surplus money available such as is present in this case. Surely the framers of Amendment 17 took for granted the counties would provide constitutional jail facilities. It is not unreasonable to suppose that passage of Amendment 17 was conditional upon the assumption that the citizens of a county already provided constitutional jails but might want to go further and provide even more modern facilities. If we ignore this premise and hold that the Amendment requires voter approval, then the Amendment is unconstitutional because it allows the continued operation of jails whose condition may constitute cruel and unusual punishment. The voters of many counties may never vote to improve their jails.

The opinion as written reaches the absurd result that a county cannot pay for a jail or courthouse facility from funds on hand regardless of the amount of funds available. This is the same as holding a person may not pay cash for a home when there is a statutory procedure for buying it on credit. I find the majority opinion confusing. For example, it states: “We think the Amendment means the county may not undertake the construction . . . except where it has the necessary funds on hand ...” That conflicts with the holding of the court in the final result. The opinion holds Act 60 of 1972 to be inapplicable. That part of Act 60 which authorizes counties to construct jails from “Available surplus operating moneys” seems to me to be clearly applicable here. Either Act 60 is unconstitutional or it is applicable. Its constitutionality is not attacked. Therefore, it is applicable. The opinion then construes Amendment 17 to provide “the electors of a county can vote on whether or not to authorize construction of a jail, courthouse or hospital to be funded by a tax increase.” That was never in issue. There is no tax proposal before us. Nevertheless, that is exactly the meaning of Amendment 17. It is in no manner designed to regulate the purchase of land.

I would reverse.


text:
    Kakee Kaleem ABDULLAH a/k/a Robert Earl WHITE v. STATE of Arkansas
    CR 83-105
    663 S.W.2d 166
    Supreme Court of Arkansas
    Opinion delivered January 23, 1984

      B. W. Sanders, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Dep. Atty. Gen., for appellee.
   Steele Hays, Justice.

On November 1, 1982, the State filed seven felony informations against the appellant, charging him with burglary and theft of property. On the same day appellant signed a Statement in Advance of Plea of Guilty, and later appeared before the Clark Circuit Court to enter guilty pleas. A hearing was held and guilty pleas in all seven cases were accepted by the Court. A sentencing hearing was held on November 8, and appellant was sentenced to consecutive sentences of five years on each charge. Appellant sought post-conviction relief under A.R.Cr.P. Rule 37, alleging that his pleas had not been knowingly and voluntarily made. The Court denied relief and appellant brings this appeal. We find no error.

Appellant first argues that he was under the influence of hallucinogenic drugs at the time he signed the Statement in Advance of Plea of Guilty. However, his testimony was disputed by police officers who testified that appellant was coherent and gave no indication of being under the influence of alcohol or drugs, that no tests were administered because there was no indication of any drug or alcohol induced behavior. It is for the trial court to weigh the evidence and resolve the credibility of the witnesses. Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981). Appellant makes no argument that he was not of a clear mind when he later appeared in court for the hearing. At the hearing, the trial judge made the necessary inquiries before accepting a guilty plea under A.R.Cr.P. Rule 24.4 (Advice by Court), A.R.Cr.P. Rule 24.5 (Determining Voluntariness of Plea) and A.R.Cr.P. Rule 24.6 (Determining Accuracy of Plea). See Reed v. State, 276 Ark. 318, 635 S.W.2d 472 (1982). It is clear from the record that all of the responses appellant gave to questions by the Court were consistent with his understanding of the proceedings and the effect of guilty pleas.

Appellant next contends he was under the impression that a plea bargain of twenty-five years had been agreed on, yet he received a sentence of thirty-five years. He explains his understanding in this manner: the Statement in Advance of Plea of Guilty read: “I am twenty-five years old,” and he took that to be a reference to a twenty-five year plea bargain. But the trial court properly rejected that implausible argument. Appellant has an eighth grade education and can read and write. The record shows that appellant heard the prosecutor recommend a sentence of five years consecutive on each charge and, additionally, the trial judge further explained to the appellant that he was not bound by recommendations in imposing the sentences.

In Marshall v. State, 262 Ark. 726, 561 S.W.2d 76 (1978), we stated, citing Rule 25.3, that if the parties have not sought the concurrence of the trial judge in a plea agreement he shall advise the defendant in open court in reference to any agreement that 1) the agreement is not binding on the court and 2) if the defendant pleads guilty or nolo contendere, the disposition may be different from that contemplated by the agreement. The following excerpt from the November 1st hearing makes it clear that the Court complied with Rule 25.3:

COURT: Have any promises or any threats been made to you to get you to enter a plea of guilty?
DEF.: No, sir.
COURT: Mr. Abdullah, is your plea — should you enter a plea of guilty, is it based upon a known recommendation from the prosecuting attorney’s office?
DEF.: Yes, sir.
COURT: As a recommendation, Mr. Abdullah, do you understand that I’m not bound by it?
DEF.: Yes. Yes, sir.
COURT: The final responsibility of sentencing is mine.
DEF.: That’s right, sir, yes, sir.
COURT: Do you know of any reason why I should not require a plea from you today?
DEF.: Well, I — I — I just did it and I know it was wrong. I just want to go on and get it over with. It’s been riding my head for the last several weeks and I just — I just can’t handle it. It’s too heavy.

The record does not substantiate appellant’s claim that his plea was not knowingly and voluntarily given.

Appellant’s assertion that because he was not represented by counsel his guilty pleas should be vacated was not raised at the Rule 37 hearing and will not be considered when it is raised for the first time on appeal. Wiser v. State, 256 Ark. 921, 511 S.W.2d 178 (1974).

Affirmed.