text:
    Anthony MONTS v. STATE of Arkansas
    CR 92-1338
    851 S.W.2d 432
    Supreme Court of Arkansas
    Opinion delivered April 19, 1993

      William R. Simpson, Jr., Public Defender, by: Thomas B. Devine, III, Deputy Public Defender.

      Winston Bryant, Att’y Gen., by: Catherine Templeton, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was convicted of the crime of rape and then pled guilty to the charges of burglary and criminal attempt to commit rape. He subsequently filed a Rule 37 motion seeking post-conviction relief alleging he received ineffective assistance of counsel. The trial court denied appellant’s petition, and appellant now appeals that ruling. Appellant argues that his trial attorney, Bill McArthur, improperly failed to file a timely speedy-trial motion, asking appellant’s charges be dismissed. He further claims McArthur obtained trial continuances that appellant never approved. Neither of appellant’s arguments has merit.

The short answer to appellant’s first argument is that, while Mr. McArthur did not ask that appellant’s charges be dismissed on speedy-trial grounds, appellant did file such a motion pro se, and the trial court denied his motion. Appellant appealed the trial court’s ruling to the court of appeals, and in an unpublished opinion, the appellate court held the appellant had not been deprived of a speedy trial. Monts v. State, CACR 91-242, opinion delivered on June 17, 1992. Thus, in this Rule 37 proceeding, appellant has shown no prejudice which has resulted from his trial attorney’s failure to file a speedy-trial motion. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984). Appellant raised the speedy-trial issue he now says his attorney failed to raise, and he lost on that issue both at trial and on appeal. Rule 37 does not provide a means to relitigate a matter decided on appeal. Spivey v. State, 299 Ark. 412, 773 S.W.2d 446 (1989).

We also point out that the court of appeals’ decision that appellant’s speedy-trial claim was without merit lends support to the presumption that Mr. McArthur acted within the bounds of reasonable professional assistance. Spivey, 299 Ark. 412, 773 S.W.2d 446; Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989). Counsel cannot be found ineffective when he or she fails to make an argument which has no merit. Stanley v. State, 297 Ark. 586, 764 S.W.2d 426 (1989). In sum, even if appellant’s counsel had filed a motion to dismiss on speedy-trial grounds, such a motion would have been unavailing.

Appellant’s next argument concerns whether his trial attorney, McArthur, obtained continuances in appellant’s absence and without his approval. Both the appellant and McArthur testified on this issue, and McArthur related that he had discussed all the continuances obtained with both the appellant and his mother, and appellant was present for all such requests except one. The trial court’s docket sheet supports McArthur’s testimony concerning appellant’s appearances. It is well established that the credibility of the witnesses is a matter for the factfinder, Ham v. State, 296 Ark. 385, 757 S.W.2d 932 (1988), and in this case, the trial court obviously believed Mr. McArthur’s testimony rather than the appellant’s.

Finally, we reiterate the rule that matters of trial tactics and strategy, which can be a matter of endless debate by experienced advocates, are not grounds for post-conviction relief. Knappenberger, 283 Ark. 210, 672 S.W.2d 54. Here, McArthur testified that sources had informed him that the victim in this case was “shaky,” and if given enough time, the victim might move from the state and refuse to testify for the prosecution. We cannot say here that counsel’s tactical decisions to obtain continuances denied appellant a fair trial. Id.

For the above reasons, we affirm.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Barbara J. BOX v. John T. BOX
    92-928
    851 S.W.2d 437
    Supreme Court of Arkansas
    Opinion delivered April 19, 1993
    [Rehearing denied May 24, 1993.]

      Hubert W. Alexander, for appellant/cross-appellee.

      Hoof man & Bingham, P.A., by: Clifton H. Hoof man and George E. Pike, Jr., for appellee/cross-appellant.
   Donald L. Corbin, Justice.

Barbara Box appeals from a divorce decree and judgment entered by the Pulaski Chancery Court. She asserts only one point of error. John T. Box cross-appeals, asserting two points of error. As all assignments of error concern the classification and division of property, resolution of this appeal requires our interpretation of our division of property statute, Ark. Code Ann. § 9-12-315 (Supp. 1991). Our jurisdiction is pursuant to Ark. Sup. Ct. R. 29(l)(c). We reverse and remand on direct appeal and affirm on cross-appeal.

The parties married on March 25,1983. They separated on May 22, 1990, and appellant filed for divorce on May 9, 1991. Appellee counterclaimed for divorce on July 2, 1991.

The evidence presented at trial reveals that, prior to the parties’ marriage, appellee had acquired two parcels of real estate. He owned a 100-acre farm in Romance, Arkansas. Purchase-money mortgage payments on the farm are $ 190.83 per month. He also owned a 38-acre homestead in Jacksonville, Arkansas, which was given to him free of any debt by his parents. In September 1980, the homestead was mortgaged for $30,000.00, to be paid over 120 months at $465.90 per month. On the date the parties married, appellee owed $27,638.78 on this mortgage; during the marriage, the $27,638.78 balance on the mortgage was paid in full. Appellee stated that he borrowed the $30,000.00 to pay the property settlement in his prior marriage. In June 1985, the homestead was mortgaged for $2,000.00, to be paid over 24 months at $94.61 per month. This mortgage was paid in full during the marriage. Appellee stated that he borrowed the $2,000.00 to help purchase a car for one of appellant’s daughters. A court-appointed appraiser valued the homestead at $85,000.00 as of the date the parties married. The same court-appointed appraiser valued the homestead at $91,000.00 as of December 19, 1991.

Evidence presented at trial also reveals that, during the marriage, appellant was employed as a secretary for an insurance company earning $1,000.00 per month; appellee worked as a fireman for the civil service earning approximately $960.00 per month. During the first two and one-half years of their marriage, the parties and two of appellant’s three daughters lived in a house rented to appellant. Appellant paid the rent and all expenses on the rent house while the parties lived there and made improvements to appellee’s homestead. After the two and one-half years of living in the rent house while improving appellee’s house, the parties and appellant’s two daughters moved into appellee’s house and continued to live there for approximately five and one-half years. During this time, appellant used her earnings to pay the telephone bills, gasoline bills, grocery bills, and insurance on appellee’s house and all family vehicles; appellee used his salary to make the mortgage payments and utility bills on both his house and his farm. Appellant testified that over the course of the marriage, she spent a least $13,190.00 on improvements to appellee’s house and for living expenses. She stated that the $13,190.00 was proceeds from the sale of a house she owned a one-half interest in prior to the parties’ marriage.

Finding that the parties had lived separate and apart for more than eighteen months, the chancellor granted appellee an absolute divorce on those grounds effective March 27, 1992. A decree was entered on May 13, 1992, in which the chancellor found appellee to be the owner of the real properties he acquired prior to the marriage. The chancellor ordered that appellee would remain the owner of all real property owned by him prior to the , marriage and that appellant would have no interest in his real property except as provided in the decree. After considering the court-ordered appraisals, the chancellor then found that certain improvements were made to appellee’s house by the parties which caused the value of the house to increase by $6,000.00. The chancellor awarded appellant “$3,000.00 for one-half (1/2) of the increase in value of the home which resulted from the efforts of the parties.” The decree also distributed the parties’ personal property by ordering that the personalty should “remain the sole property of the one in possession.” There is little explanation of exactly what personalty was distributed. The decree also distributed part of appellee’s civil service pension to appellant.

DIRECT APPEAL REDUCTION IN MORTGAGE AS MARITAL PROPERTY

Appellant argues the chancellor erred by not considering evidence that during the parties’ marriage, the indebtedness held against appellee’s non-marital properties was greatly reduced through payments made with marital funds. Appellant argues, both below and on appeal, that section 9-12-315 permits the chancellor to award appellant one-half of the reduction in indebtedness, either as an increase in value of non-marital property, section 9-12-315(a)(2), or as a transformation of non-marital property into marital property through the investment of marital funds, section 9-12-315(a)(1)(A). Appellant claims the chancellor erred by not considering these sections of the statute when dividing the parties’ property. We agree.

With respect to the division of property in a divorce case, we review the chancellor’s findings of fact and affirm them unless they are clearly erroneous, or against the preponderance of the evidence; we review the division of property and affirm it unless it is clearly erroneous, or against the preponderance of evidence. Bagwell v. Bagwell, 282 Ark. 403, 668 S.W.2d 949 (1984); ARCP Rule 52.

In the present case, the chancellor’s finding with respect to ownership of the homestead and farm are supported by the preponderance of the evidence. Appellee owned these properties prior to marrying appellant. Section 9-12-315(b)(1) therefore excepts these two properties from the definition of marital property. In other more affirmatively phrased words, these two properties are classified as non-marital properties. We cannot say the chancellor erred in ordering that appellee remain the sole owner of these properties.

However, the chancellor did err in failing to consider that marital property was used to pay some of the debt against the non-marital properties. Earnings acquired subsequent to marriage are classified as marital property. Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984); Ark. Code Ann. § 9-12-315(b). In Bagwell, 282 Ark. 403, 668 S.W.2d 949, we stated that a chancellor may find that a non-owning spouse is entitled to some benefit by reason of marital funds having been used to pay off debts on the owning spouse’s non-marital property. We have also held that a non-owning spouse is entitled to some benefit when marital funds are used to purchase a home built on the owning spouse’s non-marital lot. Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983).

Section 9-12-315(a) gives a chancellor the discretion to divide equitably both marital and non-marital property after considering the stated factors. In fact, when considering the former property division statute, we have stated that a chancellor is given broad powers to distribute both non-marital and marital property to achieve an equitable division. Williford, 280 Ark. 71, 655 S.W.2d 398. The overriding purpose of the property division statute is to enable the court to make a division that is fair and equitable under the circumstances. Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986).

There was evidence presented indicating marital funds were used to pay some of the debts against appellee’s homestead and farm. This is relevant evidence for the trial court to consider when dividing the parties’ marital and non-marital property. See Ark. Code Ann. § 9-12-315(a). See also Bagwell, 282 Ark. 403, 668 S.W.2d 949; Williford, 280 Ark. 71, 655 S.W.2d 398. We reverse the decree on this point and remand for consideration of this evidence.

CROSS-APPEAL INCREASE IN VALUE TO NON-MARITAL PROPERTY DUE TO IMPROVEMENTS; DEBT FOR IMPROVEMENTS

For his first point on cross-appeal, appellee claims the chancellor erred in awarding appellant the $3,000.00, or one-half the $6,000.00 increase in value to his house from the labor and efforts of the parties’ improvements to the house. He claims the chancellor erred further in making him responsible for the remainder of the $3,500.00 debt for the central heating and air unit added to his house during the marriage.

At trial, appellant presented evidence of improvements made to appellee’s house during the marriage. This evidence was contested by appellee who characterized the improvements as changes. He also disputed that all the improvements were made during the marriage, claiming that some were made prior to the marriage.

Appellant presented a list of improvements made and testified that during the marriage, the parties cleared the yard of excess building materials, debris, and approximately 30 trees; cleared the interior storage area of similar debris and finished it as a bedroom; replaced posts on front porch and added storm door; added baseboards, window frames and door frames throughout; removed paneling, patched sheetrock, and painted or wainscoted and papered walls throughout; replaced vinyl and sub-floor in kitchen; added dishwasher, Jenn-Air, stainless steel sink, ceramic tile and new Formica in kitchen; refinished cabinets in kitchen; installed new light fixtures in kitchen; installed ceiling fans throughout; installed new bathroom fixtures in both bathrooms; installed mini-blinds and carpet throughout; installed central heat and air unit; replaced shingles on roof; painted exterior wood; painted and shingled pump house; planted shrubs and trees; installed water lines and gas lines to connect with public utilities; laid foundation for addition of an attached three-car garage, utility room, and full bathroom.

Appellee specifically argues appellant did not meet her burden of proving that the $6,000.00 increase in value shown by the appraisals was caused by the alleged improvements. Appellee argues that the $6,000.00 increase is relatively small given the high rate of inflation and could have been caused by factors other than the improvements. He contends that an increase in value of non-marital property is classified as non-marital property pursuant to section 9-12-315(b)(5); and that the chancellor therefore erred in awarding appellant one-half of the increase in value of his home. The chancellor further compounded the error, argues appellee, by making him responsible for the debt on the improvements, namely the remainder of the $3,500.00 owed for the central heating and air unit.

As stated in the decree, the chancellor specifically found that the $6,000.00 increase in value reflected by the appraisals was caused by the improvements made to appellee’s house. The chancellor also found that the increase resulted from the parties’ efforts and therefore awarded appellant one-half of the increase.

Although section 9-12-315(b)(5) classifies an increase in value of non-marital property as non-marital property, it is appropriate for a chancellor to consider the non-owning spouse’s contributions toward the increase in value when dividing the property. See Ark. Code Ann. § 9-12-315(a). Given the evidence presented as to the improvements made by both parties, as well as the increase in value reflected in the appraisals, we cannot say the chancellor’s findings and division of property were clearly erroneous.

As for the chancellor’s decision placing full responsibility for the debt of the central heat and air unit on appellee, we note that although the division of debts is not addressed in section 9-12-315, the chancellor has authority to consider the allocation of debt in deciding a divorce case. In Hackett v. Hackett, 278 Ark. 82, 85, 643 S.W.2d 560, 562 (1982), we stated that “[i]ndeed it would be unrealistic for a chancellor to refuse to consider the debts of the parties in deciding a divorce case.”

At trial, the chancellor stated the following:

It’s also the finding of the court that he [appellee] will be totally responsible for the debt on the air conditioner and thát the air conditioner has remained in the house.
And just as I am not dividing all of the money that went into the house between the parties, I’m also not going to divide what remains in the house as being a debt. I mean, in other words, you can’t have it both ways. We’re not putting all the money that went into the house and saying that she gets that back; we’re also not going to say that she has to pay any part of the debt with something that is remaining with the house.

The chancellor specifically found that the unit was an improvement to the house and that the unit would remain in the house, which is appellee’s non-marital property. We are well aware that appellee disputes the finding that the unit is an improvement to his house. However, based on the appraisals and the evidence of the improvements, we cannot say the chancellor clearly erred in making such a finding nor by placing full responsibility on appellee for the $3,500.00 debt to finance the improvement to his non-marital property.

CROSS-APPEAL INEQUITABLE DISTRIBUTION OF APPELLEE’S PENSION

As his second point on cross-appeal, appellee argues the chancellor made an inequitable division of marital property when she awarded appellant part of appellee’s civil service retirement benefits. To be equitable, he argues the chancellor should have either awarded him part of appellant’s social security benefits or should not have awarded appellant part of his civil service benefits.

Appellee testified that he had a vested pension with the civil service, that he did not pay any social security taxes, and that he was not entitled to receive any social security benefits. He stated that he had worked for civil service almost 25 years and that if he continued to work there until he reached age 50, he could draw his civil service benefits then. Otherwise, he could draw his civil service benefits when he reached age 62. He also stated that his civil service benefits had a cash value of approximately $ 14,000.00, explaining that he could be paid the $ 14,000.00 if he were to quit working there immediately. He also stated the total amount he contributed into his civil service benefits plan during his marriage to appellant was approximately $14,000.00.

' There was no evidence presented relating to appellant and whether she was entitled to receive social security retirement benefits. Likewise, there was no evidence presented as to whether she had a private pension or any retirement benefits whatsoever.

The chancellor stated she was aware that appellee’s pension could be in lieu of social security benefits. However, she also stated that she was going to treat appellee’s pension just as she would any other. Accordingly, the decree states as follows:

Therefore, it is found that plaintiff [appellant] is entitled to participate in the retirement benefits of said plan to the extent that one-half (1/2) of the benefit which resulted in contributions made to the plan between March 25,1983, and March 27,1992. In the alternative, counter-claimant [appellee] shall have the right to pay $7,000.00 to plaintiff [appellant], which amount represents one-half (1/2) of the present cash value of the increase to the plan during the course of the marriage.

At trial, the chancellor stated that appellee could have the weekend and two working days in which to produce a reason she should treat appellee’s civil service pension differently than any other pension. The chancellor indicated if she did not receive any such reason within the given time, she would let her ruling stand. The record does not indicate that appellee ever presented the chancellor with the requested information.

Appellant argues that appellee has waived this argument on appeal by his failure to present the trial court with the requested information. We agree. Our research indicates that Congress has spoken in this area. 42 U.S.C. §§ 407, 659, 662(c) (1988) (indicating that social security benefits are not assignable, not subject to legal process, and not to be divided by a state court considering property division in a divorce case); 5 U.S.C. § 8345(j)(l) (1988) (providing that civil service retirement benefits may be paid directly to a person other than the employee pursuant to a state court order, divorce decree, or order of property settlement). Despite the fact that law exists in this area, and that appellee was given a gracious opportunity to present an objection and any supporting authority to the trial court, he did not do so. Accordingly, we hold appellee has waived this argument on cross-appeal and we do not address it.

The decree is reversed and remanded on direct appeal and affirmed on cross-appeal.


author: Donald L. Corbin, Justice. Steele Hays, Justice,

text:
    Harold Edward CHISM v. STATE of Arkansas
    CR 92-569
    853 S.W.2d 255
    Supreme Court of Arkansas
    Opinion delivered April 19, 1993

      Timothy Buckley, for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Harold Edward Chism, appeals a judgment of the Washington Circuit Court convicting him of kidnapping, first degree battery, and theft. Appellant was tried by a jury, convicted, and sentenced to the Arkansas Department of Correction for consecutive terms of life, twenty years, and twenty years, respectively. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 29(l)(b). For reversal of the judgment, appellant asserts five points of error. We find merit in appellant’s challenge to the sufficiency of the evidence on the kidnapping charge and reverse and dismiss the judgment as it pertains to that charge. We find no merit in the four remaining points and affirm the remainder of the judgment pertaining to. battery and theft.

Appellant makes five arguments on appeal, one of which is a challenge to the sufficiency of the evidence on the kidnapping charge. Appellant’s right to freedom from double jeopardy requires that we consider this argument prior to the other arguments concerning trial error. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).

INSUFFICIENT EVIDENCE OF KIDNAPPING

Appellant claims the trial court erred in denying his motions for directed verdict on the kidnapping charge. Appellant argues the jury could not have convicted him of kidnapping without resorting to speculation and conjecture.

We treat the challenge of a denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992); Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). On appeal, this court reviews the evidence in the light most favorable to appellee and sustains the conviction if there is any substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990); Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).

The evidence, as viewed favorably to appellee, reveals that on April 27,1991, the victim of the kidnapping, battery and theft first encountered appellant at R.L.’s Garage, an automobile repair shop in the southern part of Fayetteville, Arkansas. The victim stopped at the garage to ask directions to an Alcoholics Anonymous meeting place. Appellant offered to show the victim where she needed to go and entered her van.

Appellant and the victim did not find the meeting place and both returned to the repair shop. At this point, appellant was driving her van. Appellant exited the victim’s van and she then drove north on Highway 71. Approximately ten minutes later, appellant left the repair shop in his vehicle, returned to get his checkbook, and then left the repair shop again heading in the same direction as the victim had driven. Later that same day, the victim awoke in a field near a wooded area with her van nowhere in sight, naked, and severely beaten. She was also missing her wedding ring. The victim had no idea where she was or how she got there. She crawled approximately one-half mile to a residence, where she broke a window, entered the home, and called for help.

Washington County Sheriffs Deputies were able to locate the residence from where the victim telephoned for help and found her there clothed only in socks and a bra wrapped around her neck. The house where the deputies found her is located south of the Zimmerman community on Highway 170, approximately two miles north of Devil’s Den State Park. Her face was so severely beaten her eyes were swollen shut and she could barely talk. She had large lacerations over her right eye. Her face and torso were covered with dried blood. While awaiting the arrival of an ambulance, the victim told the deputies that her attacker was the man she had met at the repair shop earlier that day.

In the present case, to prove kidnapping the state must show that appellant restrained the victim, without her consent, so as to interfere substantially with her liberty with the purpose of inflicting physical injury upon her. Ark. Code Ann. § 5-11-102(a)(4) (1987). In Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988), we applied section 5-11-102 to a defendant accused of both kidnapping and an underlying crime (rape) and interpreted the kidnapping statute in such a situation as requiring the restraint of the victim’s liberty to exceed that normally incidental to the underlying crime.

We have recently applied the Summerlin case in Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991), to reverse a kidnapping conviction and in Thomas v. State, 311 Ark. 609, 846 S.W.2d 168 (1993), to affirm a kidnapping conviction. Similar to many other cases we have decided, both Shaw and Thomas involved a victim being driven from the point of contact with their attackers into a rural area and raped there. In Shaw, finding facts sufficient to sustain a conviction only for rape, we reversed the kidnapping conviction because according to the victim’s testimony, she consented to the attacker’s actions until the point at which he raped her. See Shaw, 304 Ark. 381, 802 S.W.2d 468. In Thomas, we upheld both the rape and kidnapping convictions because the victim testified that although she consented to entering her attacker’s vehicle, she immediately began kicking her attacker and pleading to be taken where she agreed to go.

This case presents a peculiar set of facts. Unlike Shaw, 304 Ark. 381, 802 S.W.2d 468, there is no testimony in the present case that the victim was restrained only at the point at which appellant committed the underlying crimes. And, unlike Thomas, 311 Ark. 609, 846 S.W.2d 168, there is no testimony in the present case that the victim was restrained at a point prior to appellant’s commission of the underlying crimes.

As previously stated, appellant specifically argues there is insufficient evidence to support a judgment of conviction for kidnapping because there is no evidence that appellant interfered with the victim’s liberty to an extent beyond that which was incidental to the underlying crimes of battery and theft. He points out that the victim was unable to remember how she got to the field. She remembered returning with appellant to the garage and then driving away alone; the next thing she remembered was regaining consciousness in the field, finding herself naked and beaten. Thus, appellant argues there is simply no evidence showing he restrained the victim in excess of the restraint incidental to the battery and theft. He argues further that the jury must have resorted to speculation to conclude he kidnapped the victim and it was therefore error to deny his motion for directed verdict.

In support of its claim that there is substantial evidence to support the verdict of guilt on the kidnapping charge, the state relies heavily on the following circumstantial evidence. The victim testified that she was unable to remember anything that happened after driving away from appellant’s place of employment. She was found miles away from the place she was last trying to locate. She also stated that she thanked God she could not remember anyone hitting her. However, she did testify that she did not give anyone permission to take her van or wedding ring. The day after the victim encountered appellant, Washington County Sheriffs Deputies found both the keys to her van and her wedding ring on appellant’s person.

We have stated that circumstantial evidence may constitute substantial evidence. Still v. State, 294 Ark. 117, 740 S.W.2d 926 (1987). However, in order for circumstantial evidence to constitute substantial evidence, it must exclude every other reasonable hypothesis consistent with an accused’s innocence. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). Whether the circumstantial evidence excludes all other reasonable hypotheses consistent with innocence is a question to be determined by the finder of fact. Id.

We are well aware of the foregoing rules of law concerning circumstantial evidence. However, regardless of whether evidence is direct or circumstantial, it must still meet the requirement of substantiality — it must force the fact finder to reach a conclusion one way or the other without resorting to speculation or conjecture. We cannot say the evidence presented in this case meets that requirement. This case bears a noticeable absence of any substantial evidence, either direct or circumstantial, that the victim’s liberty was or was not restrained in excess of the restraint that was incidental to the battery and theft. There is not substantial evidence to support the jury’s verdict of guilt as to the kidnapping charge and the trial court therefore erred in denying appellant’s motion for directed verdict.

ILLEGAL SEARCH AND SEIZURE

Appellant claims the victim’s van keys and wedding ring found in his pocket during a pat-down search should have been suppressed. On appeal, he argues the warrantless search was illegal because there was no justification for a pat-down search pursuant to Terry v. Ohio, 392 U.S. 1 (1968), as there was no evidence that he was armed and dangerous. Appellant also argues on appeal that the search was illegal because there was no probable cause to arrest him.

The trial court ruled the evidence admissible finding probable cause to arrest appellant and that a search incident to arrest is proper under those circumstances. Although the state argued the search could be justified under Terry, 392 U.S. 1, the record does not reveal that appellant ever challenged the search on that basis or that the trial court made a ruling about the search on that basis. We do not consider appellant’s argument that the scope of the search exceeded that authorized under Terry, as this argument is raised for the first time on appeal. Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992).

A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that person has committed a felony. A.R.Cr.P. Rule 4.1. Reasonable cause, or probable cause, exists where reasonably trustworthy information of facts and circumstances within an officer’s knowledge would lead a person of reasonable caution to believe that a felon was committed by the person arrested. Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987). Probable cause to arrest without a warrant does not require the degree of proof sufficient to sustain a conviction. Id.

Several of the deputies testified, both at the hearing on the motion to suppress and at trial, that they had information making appellant a suspect in the crimes committed against the victim. The victim told the deputies that she did not know her attacker but that she had met him earlier that day at an automotive repair shop on the south side of Fayetteville. In addition to this information gained from interviewing the victim, the deputies had also talked to Ron Yates, the owner of R.L.’s Garage, and to Yates’ stepson. From these two witnesses, the deputies learned that appellant had encountered the victim at the garage, that he was the last person seen with the victim, and that appellant drove his vehicle in the same direction as the victim was headed in her van. The deputies also knew the victim had been severely beaten and sustained bruises on her neck and chest in the shape of a tennis shoe print. They observed that when they encountered appellant, on the morning after the crimes occurred, he was wearing Reebok tennis shoes. In addition, the deputies knew appellant. He had several prior convictions, two of which were for battery.

As a result of this information, the deputies wished to talk to appellant and went to his home for that purpose. Appellant was not at home, but his wife at the time advised them appellant was out in a field helping get a car out that had been stuck. The deputies left appellant’s home, proceeded north on a road, and met appellant walking south along the road. One of the deputies stated, “Harold, I need to talk to you.” Appellant then walked to the trunk of the deputies’ vehicle, placed his hands on the trunk, and assumed a “spread-eagle” position allowing a search of his person without being requested to do so. The deputes were suspicious of this conduct. They noticed a bulge in appellant’s pocket and did a pat-down search for weapons. From appellant’s right front pocket, they recovered the victim’s wedding ring and numerous sets of keys, including a set to the victim’s van.

Based on the foregoing information known to the deputies at the time they asked appellant to talk to them, the deputies had probable cause to arrest appellant. A.R.Cr.P. Rule 4.1. The search, which the deputies stated was conducted contemporaneously with the arrest, was therefore a valid search incident to arrest. The van keys and wedding ring were properly admitted into evidence.

We are compelled to emphasize that the trial court’s denial of appellant’s motion to suppress is affirmable on yet another basis — appellant’s consent to the search. A consensual search does not run afoul of the Fourth Amendment. Moore v. State, 304 Ark. 257, 801 S.W2d638 (1990). On appellate review, we view the evidence in the light most favorable to appellee, and consider under the totality of the circumstances whether the state proved that consent to the search was freely and voluntarily given without actual or implied coercion. Duncan v. State, 304 Ark. 311, 802 S.W.2d 917 (1991). We affirm a finding of voluntariness unless that finding is clearly against the preponderance of the evidence. Id. Knowledge of the right to refuse consent to search is not a requirement to prove the voluntariness of consent. Id.

We can think of no better case than the present one to illustrate the requirement that consent to search be freely and voluntarily given and without actual or implied coercion. Appellant’s conduct in assuming the search position in response to the deputy’s request to merely talk to him is overwhelming evidence of appellant’s consent to search. According to the deputies’ testimonies, there was absolutely nothing said or done to appellant indicating the deputies considered him a suspect in any crime whatsoever. There was simply no reason for appellant to assume the frisk position other than to indicate his consent to search.

PHOTOGRAPHIC LINEUP

Appellant claims the trial court erred in denying his pretrial motion to suppress a photographic lineup in which the victim identified appellant as her attacker. Appellant asserts the lineup was unnecessarily suggestive because he was the only person appearing in orange jail clothing and standing in front of a height chart. The trial court found the photographic lineup, although perhaps somewhat suggestive, was not unduly so and therefore denied appellant’s pretrial motion to suppress. While the lineup was referred to at trial, it was never admitted into evidence.

If there are suggestive elements in a pretrial identification procedure making it all but inevitable that the victim will identify one person as the criminal, the procedure is so undermined that it violates due process. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). However, it is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence and then it is for the jury to decide what weight the identification testimony should be given. Id. Even if the identification procedure is unnecessarily suggestive, testimony concerning it is admissible if the identification is reliable. Id. We do not reverse a trial court’s ruling on the admissibility of an identification unless it is clearly erroneous, and we do not inject ourselves into the finding of reliability unless there is a very substantial likelihood of irreparable misidentification. Id.

As the lineup challenged in this appeal was never admitted into evidence, we need only determine that it was reliable, and in doing so we consider the following factors: (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the prior description; (4) the level of certainty; and (5) the time lapsed between the crime and confrontation. Id.

The totality of the circumstances supports the reliability of the victim’s identification of appellant as her attacker. While the first two factors cited in Bishop may arguably be influenced by the victim’s inability to remember anyone hitting her and while the victim’s prior description of her attacker proved somewhat inaccurate, the degree of certainty of the identification is overwhelmingly great and the time between the crime and the identification is short. The victim identified appellant as her attacker in the photographic lineup six days after the crimes occurred. Moreover, the victim positively stated, upon being found by the deputies, that her attacker was the man she had met at the garage earlier that same day. Two other witnesses, Ron Yates, owner of R.L.’s Garage, and Yates’ stepson, testified that appellant was the man who was with the victim at the time in question. The degree of certainty of the identification is overwhelming. The totality of the circumstances therefore indicates the identification was reliable and we cannot say-the trial court was clearly erroneous in allowing testimony about the lineup.

JUROR TESTIMONY AT MOTION FOR NEW TRIAL

When the state first charged appellant with the crimes against the victim, rape was included among the other charges of kidnapping, battery, and theft. The rape charge was dismissed by the state and appellant successfully moved in limine to exclude any reference at trial to the fact that appellant had originally been charged with rape. The state complied with the ruling and no references about the rape charge were made during trial. However, the plastic bags containing the van keys and wedding ring which were admitted into evidence reflected that the charges of “rape/assault/theft” were involved in appellant’s case. After trial, it was brought to appellant’s counsel’s attention that the jurors had seen the word “rape” on the two bags and had discussed it during their deliberations. Appellant then moved for a mistrial and to allow juror testimony on the motion.

The trial court denied appellant’s motion to present juror testimony. Appellant claims this was error because although jurors are not permitted to testify about matters occurring during deliberation, they are permitted to testify as to whether extraneous prejudicial information was improperly brought to their attention or whether any outside influence was improperly brought to bear upon any of them. A.R.E. Rule 606(b).

In the present case, there was no extraneous prejudicial information presented to the jury. The evidence bags and contents were properly admitted into evidence. The bags therefore did not constitute extraneous prejudicial information. Any testimony or affidavits by the jurors regarding the appearance of the word “rape” on the bags would have been inadmissible pursuant to A.R.E. Rule 606(b) and the trial court was correct in its ruling.

Moreover, appellant’s counsel waived any possible objection to the appearance of the word “rape” on the bags as he viewed the bags a week prior to trial and did not object to the appearance of the word “rape” then or when they were admitted into evidence. This court stated in Tosh v. State, 278 Ark. 377, 646 S.W.2d 6 (1983) that an accused may not await the outcome of the case before bringing an alleged error to the trial court’s attention.

MOTION FOR NEW TRIAL

Appellant claims he was denied a fair and impartial trial due to the appearance of the word “rape” on the evidence bags. He moved for a new trial pursuant to Ark. Code Ann. § 16-89-130(c) (1987). Appellant argues the state was under an affirmative obligation to exclude the word “rape” from the bags since it assured the trial court it would make no reference to the rape charge during the trial. Appellant argues he relied on the state’s assurance.

The decision whether to grant a new trial is left to the sound discretion of the trial court and we do not reverse its decision absent an abuse of discretion. Hall v. State, 306 Ark. 329, 812 S.W.2d 688 (1991). Here, the trial court carefully considered the issue and concluded appellant was not prejudiced by the appearance of the word “rape” on the evidence bags. The trial court considered whether the jury could have been improperly influenced in this regard and concluded it could not. The trial court reasoned that the word “rape” appeared in a very limited context on the bags along with some thirty or forty other words, all written in the same type. The court also noticed that the word “kidnapping” did not appear on the bags. The trial court also considered the state’s argument that appellant waived any objection to the bags by failing to make an objection before or during trial. The trial court observed that appellant’s counsel had an opportunity to examine the evidence bags and contents a week prior to trial. We have reviewed the trial court’s observations and reasoning and conclude there was not an abuse of discretion in denying the motion for new trial.

The record has been examined in accordance with Ark. Sup. Ct. R. 11(f). There were no rulings adverse to appellant which constituted prejudicial error.

That portion of the judgment convicting appellant for kidnapping is reversed and dismissed. The remainder of the judgment convicting appellant of first-degree battery and theft is affirmed.

Hays and Glaze, JJ., dissent.

Steele Hays, Justice,

dissenting. While recognizing that substantial evidence may be based on circumstance, the majority opinion asserts there is no substantial evidence that the victim’s liberty was interfered with in excess of the restraint necessary to commit battery and theft and, therefore, substantial evidence of kidnapping is lacking. That analysis ignores significant circumstances from which the jury could have reasonably inferred that the victim’s liberty was substantially restrained beyond that incidental to the other offenses.

Kidnapping has no requirement as to time or removal, only that there be a substantial interference with the victim’s liberty for one or more of the purposes specified in the statute. Jackson v. State, 290 Ark. 160, 717 S.W.2d 801 (1986); Cook v. State, 284 Ark. 333, 681 S.W.2d 378 (1984). Those include inflicting physical injury or engaging in sexual intercourse, deviate sexual activity or sexual contact with the victim. Ark. Code Ann. § 5-1 l-102(a) (1987). Thus, it is “the quality and the nature of the restraint, rather than its duration, that determines whether kidnapping charges can be sustained.” Cook v. State, supra. In Cook, we cited with approval two cases in which the restraints involved in kidnapping were of less than five minutes — Commonwealth v. Burkett, 370 N.E.2d 1017 (Mass. App. 1977) and Rodriguez v. State, 646 S.W.2d 524 (Tex. App. 1 Dist. 1982).

When this victim regained consciousness following a savage beating she was some fifteen miles away from the Fayetteville location she had been seeking. Her Ford van, wedding band and clothing were gone, except for her brassiere which was wrapped around her neck. Near where the victim found refuge was a muddy field where her underpants and tire impressions from the van were found.

The rationale of the cases on which the majority rely — Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988) and Shaw v. State, 304 Ark. 781, 882 S.W.2d 468 (1991) ■—rests on the constitutional impediment to punishing an accused twice for conduct which constitutes a single offense. See generally Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986). But it was not necessary for the appellant to undress the victim in order to either beat her or rob her, nor is that conduct subsumed into either the battery or theft. It stands alone. It was, I submit, permissible under the proof for the jury to infer that this victim was either transported to other than her intended destination against her will or unnecessarily restrained in the process of being disrobed, or both.

Nor is it or particular significance that the rape charge was dismissed. It is not necessary that the original objective of a kidnapping be completed. Once the kidnapper has undertaken the activity and the victim has been exposed to the attendant dangers, the act of kidnapping is complete. Cook v. State, supra.; Black v. State, 250 Ark. 604, 466 S.W.2d 463 (1971).

Glaze, J., joins in this dissent.


author: Donald L. Corbin, Justice. David Newbern, Justice,

text:
    Lowell FARNSWORTH v. WHITE COUNTY and Township of Cypert, et al.
    92-1237
    851 S.W.2d 451
    Supreme Court of Arkansas
    Opinion delivered April 19, 1993

      Anthony W. Bartels, for appellant.

      Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles, for appellees. .
   Donald L. Corbin, Justice.

The Arkansas Court of Appeals reversed the Workers’ Compensation Commission’s affirmance of the administrative law judge’s ruling that appellant was not entitled to recover workers’ compensation benefits. Farnsworth v. White County, 39 Ark. App. 98, 839 S.W.2d 229 (1992). We agree with the finding of the Court of Appeals that appellant, as a duly elected constable for Cypert Township, White County, Arkansas, is a county official and thus is entitled to workers’ compensation benefits. Therefore, we affirm the decision of the Court of Appeals.

Since we find it hard to improve on the Court of Appeals’ decision, we substantially adopt it herein. Appellant was acting as constable on September 13,1986, when he approached someone riding a three wheeler (ATV) on a county road to inform the individual that this was an unlawful act. The individual and appellant argued and a struggle ensued when appellant tried to arrest the individual. During the struggle, appellant sustained a gunshot wound to his abdomen. From this injury arose a workers’ compensation claim. Appellant argues he is entitled to workers’ compensation under Ark. Code Ann. § 14-26-101 (1987) which requires all counties “to provide workers’ compensation coverage for their officials, employees, and municipal volunteer fire fighters.” Appellees contend appellant does not qualify as a county official, employee or municipal volunteer fire fighter and is thus not entitled to compensation.

The Commission found that appellant did not fall within any of the three categories for whom the county is required to furnish workers’ compensation. It was also noted that the definition of “employee” cited by appellant in Ark. Code Ann. § 14-14-1202 (1987) and Ark. Code Ann. § 14-14-1206 (1987) did not relate to coverage for workers’ compensation purposes but rather involved personnel matters. We agree with the Commission that appellant was not an employee of the county as that term has been defined in section 14-14-1206 due to the fact he was not receiving a salary. However we disagree in regard to the finding that appellant was not an “official” of the county.

Title 14 of Arkansas Code Annotated is entitled “Local Government.” Subtitle 2 under Title 14 is entitled “County Government.” This subtitle is divided into Chapters 13 through 26. The provisions regarding workers’ compensation are found in Chapter 26, which provides workers’ compensation coverage,for all county “officials, employees and municipal volunteer fire fighters.” Ark. Code Ann. § 14-26-101 (emphasis added). The term “officials” is not defined in Chapter 26; however, Chapter 14, Subchapter 13 codified at Ark. Code Ann. §§ 14-14-1301 — 14-14-1313 (1987) is titled “Officers Generally.” Pertinent to this case is section 14-14-1301(b) which is entitled, “Quorum Court District and Township Officers,” and provides in pertinent part:

There shall be elected in each township, as preserved and continued in § 14-14-401, one (1) constable who shall have the qualifications and perform such duties as may be provided by law.

This section also includes other elected officials such as county judges, county clerks and sheriffs.

The first step in interpreting a statute is to construe it just as it reads by giving words their ordinary and usually accepted meaning. American Casualty Co. v. Mason, 312 Ark. 166, 847 S.W.2d 392 (1993). When interpreting an act, it is permissible to examine its title. Id. Parts of statutes relating to the same subject matter must be read in light of each other. City of Fort Smith v. Tate, 311 Ark. 405, 844 S.W.2d 356 (1993); Phillips v. City of Eureka Springs, 312 Ark. 57, 847 S.W.2d 21 (1993). The workers’ compensation chapter is within the same subtitle, County Government, as the chapter referring to “Officers Generally.” Constables are included within this designation. The election of officers, and the term of years a constable shall hold office are set out in Ark. Code Ann. § 14-14-1302. All of these statutes involve the same subject matter. Based on the plain meaning of the words, the titles of the sections and the subject matter involved we hold that appellant, as a constable, is an official of the county and thus covered by workers’ compensation. We therefore affirm the decision of the Court of Appeals.

Newbern, J., concurs.

David Newbern, Justice,

concurring. The majority opinion reaches the correct result, but I believe it can be explained with less confusion simply by pointing out that Ark. Code Ann. § 14-14-1301 (b)(2) (1987) establishes constable as an elected township officer. Arkansas Code Ann. § 14-14-1202(b)(l)(A) (1987) provides with respect to ethical standards for county government that “officers and employees of county government shall include ... all elected . . . township officers.” Arkansas Code Ann. § 14-26-101 (1987) requires all counties “to provide workers’ compensation coverage for their officials . . . .” It is thus clear that the General Assembly regards constables as county officers, and Farnsworth' is entitled to coverage.

       The Commission also found that appellant was not entitled to temporary total disability benefits due to the fact he was not receiving any wages upon which an award could be based. This finding has not been challenged in this appeal; therefore, we express no opinion on the validity of this finding.


author: Robert L. Brown, Justice. Robert H. Dudley, Justice,

text:
    FORREST CITY MACHINE WORKS, INC., and Mallard Farms Holding Co., Inc., and David A. Hodges v. Robert A. MOSBACHER, in His Official Capacity as Secretary of Commerce of the United States of America, and Twin City Bank
    92-339
    851 S.W.2d 443
    Supreme Court of Arkansas
    Opinion delivered April 19, 1993

      David Hodges, for appellants.

      Dover & Dixon, P.A., by: David A. Couch, for appellee Twin City Bank.

      Russell W. Craig, Chief of Commercial Litigation Division of the Department of Commerce, for appellee Mosbacher.
   Robert L. Brown, Justice.

This case concerns a grant of summary judgment to appellee Twin City Bank on various counterclaims asserted by the appellants, Forrest City Machine Works, Inc. and Mallard Farms Holding Co., Inc., and David A. Hodges. The appellants urge that the chancellor erred in his decision. They further invite this court to review the record, as abstracted, to see if facts were established to overcome summary judgment. The background of the case is complex and involves multiple issues, shifting parties, and interplay between federal and state court decisions. We conclude that the chancellor correctly awarded summary judgment, and we affirm his order.

The essential facts are these. Appellee Twin City Bank agreed to make a working capital loan to the appellant Forrest City Machine Works, Inc. on March 30, 1983. The loan was secured by farm land and guaranteed by appellants, Mallard Farms Holding Company and David A. Hodges, and by the United States Department of Commerce. On August 13, 1990, following default, the Bank foreclosed on the note and mortgage. In a counterclaim, the appellants alleged three causes of action: malicious prosecution, abuse of process, and tort of outrage. The tort counterclaims had their foundation in allegations that the Bank knew that the foreclosure suit was groundless because of litigation and a settlement between the parties in bankruptcy court in 1986.

In 1990, the Bank sued appellee Department of Commerce in the name of then-Secretary Robert A. Mosbacher, in federal district court on its guarantee of the Forrest City Machine Works loan. The Commerce Department brought the appellants into the suit on a third-party complaint as the primary obligors on the loan. In December 1990, the Commerce Department was substituted as party plaintiff for the Bank in the federal litigation as part of a settlement between the Department and the Bank.

On February 4, 1991, Special Chancellor John W. Martin denied the appellants’ motion for summary judgment relating to the Bank’s foreclosure suit. That motion had been predicated on res judicata due to the prior litigation in bankruptcy court.

On May 30, 1991, the federal district court entered a directed verdict at trial in favor of the appellants because of the failure of the Commerce Department to prove its case against the appellants.

On February 3, 1992, the chancellor granted summary judgment to the appellants on the working capital loan based on the decision of the federal district court. The chancellor also granted the Bank and the Commerce Department summary judgment on the appellants’ three tort counterclaims and dismissed a fourth amended counterclaim. Notices of appeal were filed by both appellants and appellees on March 2,3, and.9,1992.

On March 17, 1992, the appellants filed a partial record in this court. The partial record was comprised of a petition for writ of certiorari to complete the record; the chancellor’s decision on the various motions, including the summary judgments; notices of appeal by the appellants and appellees; and a motion to modify by the appellees. We granted the writ of certiorari on April 6, 1992.

On February 24, 1992, the federal district court reversed itself and set aside its May 30,1991 order for a directed verdict in favor of the appellants. The court reinstated the Commerce Department’s third-party complaint against the appellants, and the matter was set for a second trial on August 10, 1992.

On April 24,1992, the chancellor vacated his order in favor of the appellants as a direct result of the reversal by the federal district court of its decision and reinstated the Commerce Department’s lawsuit.

On August 12,1992, the Commerce Department settled the federal litigation with the appellants. The appellants filed their abstract and brief in this court as part of this appeal a month and a half later on September 28, 1992. On March 10, 1993, the Commerce Department moved this court to dismiss its appeal due to the settlement in federal district court.

I. APPEALABLE ORDER

We first address the question raised by the Bank of whether we have a final appealable order before us which disposes of all of the issues between the parties on appeal as required by Ark. R. App. P. 2(a) and Ark. R. Civ. P. 54(b). The chancellor reinstated the Commerce Department’s cause of action against the appellants on April 24, 1992, but did so after he had lost jurisdiction of the case due to a filing of a partial record in this court on March 17, 1992, following notice of appeal.

Despite the ineffectiveness of the chancellor’s order, the cause of action between the Commerce Department and the appellants has been settled and is moot. This is evidenced by the Commerce Department’s motion to dismiss its appeal filed March 10,1993, and the appellants’ representation in their brief that all matters between the Commerce Department and them had been settled and that an order of dismissal had been entered in federal district court on August 12, 1992.

The motion to dismiss appeal is granted. Hence, all issues between the parties have been disposed of, and the matter is ripe for appeal. Because several issues raised by the appellants on appeal derive from the cause of action assigned by the Bank to the Commerce Department and then settled, they are now moot, and we will not consider them.

II. TORT COUNTERCLAIMS

The dismissal of the Commerce Department’s appeal does not affect the appellants’ appeal of the summary judgment in favor of the Bank relating to the tort counterclaims.

We begin by summarizing our standards for summary judgment review. In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Nixon v. H & C Elec. Co., 307 Ark. 154, 818 S. W.2d 251 (1991). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d31 (1989). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992); Harvison v. Charles E. Davis & Assoc., 310 Ark. 104, 835 S.W.2d 284 (1992); Reaganv. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991). Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. Ark. R. Civ. P. 56(c); Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

The appellants first urge that the Bank prosecuted its foreclosure claim on August 30, 1990, with malice because the Bank was well aware that the claim was part of a prior settlement in bankruptcy court. In reviewing the tort of malicious prosecution, we concentrate on facts that occurred before the action was commenced. Cordes v. Outdoor Living Center, Inc., supra. The essential elements of the tort are: 1) institution of a legal proceeding; 2) termination of that proceeding in favor of the plaintiff; 3) absence of probable cause to institute the proceeding; 4) malice; and 5) damages. Farm Services Cooperative v. Goshien Farms, 267 Ark. 324, 590 S.W.2d 861 (1979).

The salient element that is clearly not present in this case to support the appellants’ contention is a terminated proceeding in the appellants’ favor. When the chancellor granted the Bank summary judgment on this counterclaim, the foreclosure suit was pending. Since that time, the suit was assigned to the Commerce Department, and now it has been settled with the appellants. Hence, it has never been terminated in favor of the appellants. Accordingly, the claim of malicious prosecution has no merit.

Nor has the claim of abuse of process. We recently set out the requirements to sustain this tort. There must be:

(1) a legal procedure set in motion in proper form, even with probable cause, and even with ultimate success, but, (2) perverted to accomplish an ulterior purpose for which it was not designed, and (3) a wilful act in the use of process not proper in the regular conduct of the proceeding.

Union National Bank v. Kutait, 312 Ark. 14, 17, 846 S.W.2d 652, (1993). In considering this tort, we focus on facts occurring after the institution of the action. Cordes v. Outdoor Living Center, Inc., supra. If there was no “process” abused after the initiation of the action, a cause of action will not be sustained. Union National Bank v. Kutait, supra.

The appellants failed to show the chancellor or this court any factual basis to support a claim that some process was issued and abused after the foreclosure complaint was filed, and that the additional process was used for a coercive or improper purpose. This showing was pivotal to withstand summary judgment. The chancellor correctly found this counterclaim to be meritless as a matter of law.

The appellants further counterclaimed on the tort of outrage. We have described the essential elements of this tort as follows:

1. The act must be intended to inflict emotional distress or the actor must know or should have known that emotional distress was likely to result from his conduct;
2. The conduct must be extreme and outrageous and utterly intolerable in a civilized society; and
3. The distress suffered must be so severe and of such a nature that no reasonable man could be expected to endure it.

Deason v. Farmers and Merchants Bank, 299 Ark. 167, 771 S.W.2d 749 (1989).

It is clear to us that this has been a hotly contested matter between the Bank and the appellants in which emotions ran deep and feelings were at a high pitch. The appellants in particular feel aggrieved by what they perceive as the Bank’s bad faith. The primary contention supporting the outrage claim is that the Bank brought the foreclosure action in 1990 when it knew the action was barred under the doctrine of res judicata by a 1986 settlement agreement between the parties in bankruptcy court and by the statute of limitations. On these claims and others the chancellor made this finding:

I am of the opinion that all of the allegations, if true, fall woefully short of outrageous and indecent conduct, even when viewing the record most favorably to the Respondent to the Summary Judgment.

We agree. The test for outrage is an extremely narrow test that is committed by the most heinous conduct. The allegations by the appellants simply do not approach that level. Nor were there issues of material fact presented which might support the cause of action.

III. AMENDED COUNTERCLAIM

We next turn to the appellants’ appeal of the chancellor’s order dismissing their amended counterclaim which sought a declaratory judgment relating to a debt claimed by the Bank in the amount of $620,000 and a statute-of-limitations defense raised by the appellants. The Bank had objected to the amended counterclaim under Ark. R. Civ. P. 15(a) as in no way relating to the pending litigation. The chancellor found that the counterclaim was directed to a separate debt that was not part of the chancery litigation and, thus, should not be addressed.

The appellants argue vigorously that the counterclaim, though it regarded a separate indebtedness, was compulsory and would have been barred under the doctrine of res judicata if not asserted in St. Francis County Chancery Court. That debt, however, emanated from a separate loan between the parties and had been foreclosed, following default, in another jurisdiction — Jackson County Chancery Court — and was then the subject of a bankruptcy court settlement in 1986.

The appellants have presented us with nothing persuasive in their briefs to convince us that the chancellor abused his discretion in dismissing the amended counterclaim. The $620,000 indebtedness was a separate matter originally foreclosed in a different venue. Even if it did somehow relate to the working capital loan which was the subject of this appeal, that matter has been settled between the appellants and the Bank’s successor in interest — the Commerce Department.

There is no reason to reverse the chancellor on this point.

IV. RULE 9

The Bank did not raise the issue of Rule 9 deficiencies, but we may do so on our own motion. Ark. Sup. Ct. R. 9(e) (2). We observe in this appeal that we were subjected by the appellants to an abstract of five volumes totalling almost 1,200 pages. In reviewing the abstract, it became obvious that the appellants had not fully complied with Rule 9(d) which states in part:

The appellant’s abstract or abridgement of the records should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision. (Emphasis ours.)

There was some effort by the appellants to abridge, abstract, and condense the pertinent parts of the record which our rule requires. The record was fifteen volumes plus exhibits and ran over 3,500 pages in length. The abstract was 1,200 pages. The appellants also included record references, as required by the rule, and abstracted some testimony in narrative form. They also state in their Reply Brief that they felt compelled to present an expansive abstract for this court to review in order to determine issues of fact that would contravene the summary judgment granted on the tort counterclaims.

Nevertheless, a considerable number of pages appear to be a verbatim retyping of the record, and much of the testimony abstracted is verbatim colloquy which has been retyped. Further, a good portion of the abstract is in single-spaced type. Single spacing is not expressly prohibited under Rule 9, but double spacing is required in briefs under Rule 8. That has been the universal practice in this court for abstracts, as well.

Moreover, the appellants begin the Statement of the Case with a statement that their lawsuit with the Department of Commerce has been settled in federal district court. Yet, the abstract abounds with irrelevant and redundant material relating to the federal litigation.

The question we must address is whether the abstract is flagrantly deficient as a whole. We take this opportunity to underscore, yet again, the point that excessive abstracting is as violative of our rules as omissions of material pleadings, exhibits, and testimony. Rose City Property Owner’s Assoc. v. Thorne, 299 Ark. 29, 770 S.W.2d 655 (1989); Coffelt v. Arkansas State Hwy. Comm’n, 289 Ark. 348, 712 S.W.2d 283 (1986); Oaklawn Jockey Club, Inc. v. Jameson, 280 Ark. 150, 655 S.W.2d 417 (1983); Harris v. Arkansas Real Estate Comm’n, 274 Ark. 537, 627 S.W.2d 1 (1982).

What distinguishes those cases from the present case is that in all of those cases there was no concerted effort to comply with Rule 9. The appellants copied either most or all of the record as their abstract. Here, the appellants did condense the record by more than one-half and did not simply copy parts of the record for their abstract. They also included record references throughout the abstract. And a portion of the pleadings, testimony, and exhibits is abstracted correctly.

The lapses in full compliance with Rule 9 procedures give us concern. As former Justice George Rose Smith related in his concurring opinion to Oaklawn Jockey Club v. Jameson, supra, members of this court are expected to read the abstract and when there is no discernible basis for inclusion of material, the court must engage in a prodigious waste of time. We enforce Rule 9 to hold practicing lawyers to a reasonably high standard of compliance.

We disagree with the appellants that a fullblown abstract was necessary to determine the existence of factual issues involved in the tort counterclaims. It would have been a relatively simple matter to prepare an abstract pertinent to the tort counterclaims, highlighting the factual issues that the appellants wished to bring to this court’s attention.

Though the abstract was excessive and burdensome, we opted to review the case on the merits only because of a considerable condensation of a fifteen volume record and a manifest effort to comply with Rule 9. With this opinion as notice, we will be less tolerant of failures to condense, double space, and abstract in narrative form in the future.

Affirmed.

Dudley, J., concurs.

Robert H. Dudley, Justice,

concurring. I concur in denying relief to the appellants, but I would do so by dismissing the appeal because the appellants’ abstract is flagrantly deficient. In cases where an appellant has made no meaningful effort to comply with Rule 9 of the Rules of the Supreme Court and Court of Appeals, it has been our longstanding practice to either affirm or dismiss the appeal without considering the merits. In this case, appellant has made no meaningful effort to comply with Rule 9.

The essential facts involved in this appeal are that appellee Twin City Bank loaned money to appellant Forrest City Machine Works, Inc. The loan was guaranteed by Mallard Farms Holding Company and David A. Hodges. Forrest City Machine Works defaulted on the loan, and the bank filed suit. Forrest City Machine Works, Mallard Farms, and David Hodges filed lender’s-liability counterclaims. The trial court granted summary judgment in favor of Twin City Bank on the counterclaims, and Forrest City Machine Works, Mallard Farms, and David Hodges appeal from the granting of summary judgment. That is all there is to this appeal. Yet, the appellants’ abstract is 1,192 pages long, with much of it being single spaced. To give a graphic illustration of the length of the abstract, is was necessary for the appellants to divide it into five volumes, and the five volumes are approximately five inches thick. While some cases require such a voluminous abstract, this one does not.

Rule 9(d) of the Rules of the Supreme Court and Court of Appeals provides that the appellant’s abstract should consist of an impartial condensation “of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the court for decision.” (Emphasis added.) The abstract must be “double spaced, except for quoted material, which may be single spaced and indented.” Ark. Sup. Ct. R. 8(a).

The abstract first sets out the pleadings. The first pleading contained in the abstract is the complaint. While there is no appeal from the judgment granted on the complaint, it should have been abstracted, not quoted verbatim over five single-spaced pages. The loan agreement attached to the complaint is quoted in full, and it covers thirty additional pages. It is not necessary to an understanding of the appeal. The answer and counterclaim, which are material, are quoted verbatim in seven single-spaced pages. A motion for summary judgment is copied verbatim. A motion to disqualify counsel, which is not material in any way, is copied verbatim on two single-spaced pages. A motion asking to schedule a hearing in the trial court is quoted. Again, it has nothing to do with an understanding of the issues in this appeal. A memorandum brief to the trial court is quoted in full in single space. It is not a pleading that is material to this appeal. A response to the motion to disqualify is set out in full. It is not material to the issues on appeal. A memorandum brief on the motion to disqualify is quoted in full on single-spaced pages. Twin City Bank’s motion for summary judgment is set out. It is material and is properly included in the abstract. However, immediately after the motion, there appears a verbatim copy of the brief in the trial court in support of the motion. The trial brief is not a pleading that is material to this appeal. An immaterial objection to the form of an order is set out in full, and a brief in support of the response to the motion for summary judgment is quoted verbatim over six and one-half single-spaced pages. Neither of those is properly included in the abstract. An immaterial order scheduling a hearing is set out. Another copy of a brief to the trial court is set out in full. It is not a pleading material to the issues on appeal.

A hearing on various motions was held by the trial court. At that time, the trial court heard only argument of counsel; there was no testimony. Yet, the complete copy of the transcript of the hearing is quoted verbatim on twenty-four single-spaced pages. It is not abstracted in any way. Its length in pages is condensed only by converting the double spacing of the transcript to single spacing in the abstract. Additional parts of the immaterial motion to disqualify are quoted. An amended answer and counterclaim are quoted. They are material, but the pages quoted verbatim are single spaced. A motion of Robert A. Mosbacher, Secretary of the United States Department of Commerce, to substitute as plaintiff and his brief thereon are quoted in full. A motion to strike the Secretary’s motion is quoted in full. Again, none of this is material to the appeal. A brief by the Secretary of Commerce is quoted in full over nine single-spaced pages, and the exhibits to the brief are quoted. Again, it is not material. The first condensation, or abstract, does not begin until page 165, and it is the condensation of a deposition. However, much of it is not material to the appeal.

Another hearing was held on January 24,1991. Again, there is no condensation of the proceeding. Instead, there is a verbatim single-spaced copy of the transcript.

Pages 346 through 375 contain a verbatim single-spaced copy of a transcript of a hearing in federal district court. Pages 388 through 404 consist of a single-spaced verbatim copy of the Secretary of Commerce’s response to a motion for summary judgment made by Forrest City Machine Works, Mallard Farms, and David Hodges. Again, this has nothing to do with this appeal. Pages 404 through 634 are verbatim copies of partial transcripts from the federal district court. There is no condensation, or abstract, of this 230 pages of testimony taken from a transcript,- and it is all single spaced.

Pages 635 through 717 are single-spaced verbatim responses to interrogatories. Almost none of the responses have anything to do with the issues on appeal. For example, twenty-one of the pages of the responses are listings of potential witnesses who might be called if the case had been tried.

Pages 980 to 992 consist of a verbatim copy of the Secretary of Commerce’s response to Forrest City Machine Works’s, Mallard Farms’s and David Hodges’s motions for summary judgment. Again, this is immaterial to this appeal in which Forrest City Machine Works, Mallard Farms, and David Hodges are appealing from the summary judgment dismissing their counterclaim for lenders’ liability against Twin City Bank.

Pages 995 through 1051 contain a single-spaced reproduction of the transcript of a hearing held on August 22, 1991. The transcript is the redaction of the oral arguments made by counsel. It does not include any testimony, and is not necessary to an understanding of the case. Pages 1065 through 1073 contain a verbatim copy of a motion by the Secretary of Commerce, and, again, it is immaterial.

Pages 1077 through 1100 are a verbatim single-spaced copy of the transcript of another hearing in the federal district court. The hearing is material, but none of the transcript is abstracted. The only condensation is in the number of pages, but this is done by converting the abstract to single-spaced pages. Pages 1106 through 1116 contain verbatim copies of motions by the Secretary of Commerce.

Most of the remaining pages of the abstract contain verbatim quotes from trial briefs and are not pleadings necessary to an understanding of the issues on appeal.

In summary, the bulk of the material contained in the abstract is not necessary to an understanding of the issues on appeal. Rule 9(d) mandates that an abstract be of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of the questions presented to the court for decision. Most of the abstract is single spaced, and our rule requires that it be double spaced, except for quotations, which must be indented. Finally, very little of the record is truly abstracted. The transcripts of testimony from various courts are not abstracted. They are quoted verbatim single spaced. The only abstract of testimony in the first person is contained in the abstract of two depositions, but those depositions are of questionable materiality. It is true, as set out in the majority opinion, that there was some condensation of the record because the original record, including exhibits, ran slightly over 3,500 pages, while the abstract covers 1,192 pages. Nevertheless, although it is also true that some matters have been omitted from the abstract entirely, there was no reasonable basis for including those matters in the first place, and much of the significant reduction in the number of pages was the result of single spacing the abstract in violation of our rules. Other condensation was the result of including more documents on one page in the abstract than in the record. For example, if there were two letters in the record that covered a page and a half each, those two letters would take up four pages in the record. However, appellants included the letters in the abstract without any space between them so that they would only take up three pages. That is not the type of condensation contemplated by Rule 9. The appellants simply made no meaningful effort to comply with Rule 9. Their abstract is flagrantly deficient, and I would follow our longstanding practice and dismiss their appeal. Similar cases in which we have dismissed the appeal are the following: Rose City Property Owners’ Ass’n v. Thorne, 299 Ark. 29, 770 S.W.2d 655 (1989); Coffelt v. Arkansas State Highway Comm’n, 289 Ark. 348, 712 S.W.2d 283 (1986); Oaklawn Jockey Club, Inc. v. Jameson, 280 Ark. 150, 655 S.W.2d 417 (1983); Harris v. Arkansas Real Estate Comm’n, 274 Ark. 537, 627 S.W.2d 1 (1982); Gray v. Ouachita Creek Watershed Dist., 239 Ark. 141, 387 S.W.2d 605 (1965).

Aside from the obvious reason for this concurring opinion, there are underlying reasons. First, if each judge on this court is to be able to read all of the briefs submitted to us each week, we must enforce Rule 9. It took about twelve hours to read the abstract and the briefs in this case, and this case was only one of nine that were submitted on one particular submission date. If the abstracts submitted in the other cases had also been flagrantly in violation of the rule, we could not possibly have had a multi-judge review of each case, and a multi-judge review is the very foundation of our appellate review system. Second, courts do a disservice both to the public in general and to the members of the bar when we fail to hold practicing lawyers to a high standard of professional service. In the past, we have tried to hold practicing lawyers to such a standard. Third, Rule 9 and its predecessor rules have been with us for many years. It is not a new rule. The majority opinion does a disservice to those practicing lawyers who have met the standard over the years, and it does an injustice to those lawyers who have previously had their cases dismissed for failure to comply with Rule 9. Accordingly, I wish to disassociate myself from the last sentence of the majority opinion. I would dismiss this appeal because of a deficient abstract.


author: Robert L. Brown, Justice.

text:
    STATE of Arkansas v. L.J. CAMPBELL
    92-1183
    851 S.W.2d 434
    Supreme Court of Arkansas
    Opinion delivered April 19, 1993

      Winston Bryant, Att’y Gen., by: Kyle R. Wilson, Asst. Att’y Gen., for appellant/cross-appellee.

      James E. Goldie, and Adams & Nichols Law Firm, by: Donald J. Adams, for appellee/cross-appellant.
   Robert L. Brown, Justice.

This case brings to the forefront again the payment of attorney’s fees for court-appointed counsel. The issues raised are the constitutionality of Ark. Code Ann. § 16-92-108 (1987), the responsibility of the state or county to pay those fees and expenses in excess of the statutory limits, and what constitutes “just compensation” for the taking of an attorney’s property in the form of legal services. The trial court concluded that the fee caps were unconstitutional; that the county should pay fees of $350 in each case and costs of $ 100 in one case and $78.44 in the other case and that the State of Arkansas should pay the balance; and that just compensation was substantially less than compensation claimed by defense counsel. We affirm as modified and remand.

The appellee, L.J. Campbell, was charged with nine counts of delivery of marijuana and as a habitual offender. An attorney, James E. Goldie, was appointed to represent him due to his indigency. The case was tried to a jury over three days, and a conviction resulted. Goldie then moved for attorney’s fees in the amount of $10,335, under Ark. Code Ann. § 16-92-108 (b)(1), and costs of $165.78. By judgment entered May 19, 1992, the trial court concluded that counsel was “not entitled to be compensated at the maximum rate he charges private clients” but “only a reasonable amount of compensation.” It then awarded $3,500 as compensation and $165.78 in costs. Of those amounts, Newton County was ordered to pay $3 50 in fees and $ 100 in costs, and the State of Arkansas was ordered to pay the balance.

Campbell was also charged in a second information with two counts of delivering methamphetamine and propylhexadrine, manufacturing marijuana, and as a habitual offender. Campbell pled guilty to these charges on February 28, 1992. Goldie, as appointed counsel, then moved for attorney’s fees in the amount of $3,030 and $78.44 as costs. The trial court entered judgment on May 26,1992, again finding that counsel was “not entitled to be compensated at the maximum rate he charges private clients” but “only a reasonable amount of compensation.” The court then awarded $650 as compensation and $78.44 in costs. Newton County was ordered to pay $350 of the fees and the full $78.44 in costs, with the State of Arkansas being responsible for the balance of the fees.

On June 4, 1992, the State filed a motion to amend both judgments as to the issue of responsibility for payment. No order was entered on the motion within thirty days, and the State proceeded with this appeal on the issue of liability for payment of fees. Goldie cross-appealed on whether he was denied just compensation for his services.

I. DIRECT APPEAL — STATE LIABILITY FOR PAYMENT OF LEGAL FEES

The statute embracing fee and expense caps, Ark. Code Ann. § 16-92-108 (1987), reads:

(a) Whenever legal counsel is appointed by any court of this state to represent indigent persons accused of crimes, whether misdemeanors or felonies, the court shall determine the amount of the fee to be paid the attorney and an amount for a reasonable and adequate investigation of the charges made against the indigent and shall issue an order for the payment thereof.
(b) (1) The amount allowed for investigation expenses shall not exceed one hundred dollars ($100), and the amount of the attorney’s fee shall be not less than twenty-five dollars ($25.00) nor more than three hundred fifty dollars ($350).
(2) The amount of attorney’s fees for attorneys who defend indigents accused of capital murder or murder in the first degree shall be not more than one thousand dollars ($1,000).
(3) The attorney’s fees provided for by this section shall be based upon the experience of the attorney and the time and effort devoted by him in the preparation and trial of the indigent, commensurate with fees paid other attorneys in the community for similar services.
(c) (1) Upon being furnished an order of the court fixing the fees, the quorum court of the county in which the indigent was charged shall appropriate from the county general fund adequate funds to pay the fees, not to exceed the amount of three hundred fifty dollars ($350) for the attorney’s fees nor one hundred dollars ($100) for investigation expenses, and the county treasurer shall disburse the fees to the appointed attorney.
(2) The balance not paid by the counties shall be paid by the state from the Trial Expense Assistance Fund created by § 16-92-109.
(d) An attorney shall not be so appointed by a court if the attorney certifies to the court, in writing, that he or she has not attended or taken a prescribed course in criminal law in an accredited school of law within twenty-five (25) years prior to the date of appointment, that the attorney does not hold himself or herself out to the public as a criminal lawyer, and that he or she does not regularly engage in the practice of criminal law.

There has been a division on this court concerning the facial viability of the fee cap provisions of § 16-92-108. Our plurality decision in State v. Post, supra, illustrates that division. Two members of this court agreed that the statute was constitutionally impaired and should be invalidated. Two members, concurring, agreed that Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1990), struck down the fee cap section, § 16-92-108(b), as applied to that case on Due Process and Equal Protection grounds. Three members of this court, dissenting, also referred to the fact that Arnold v. Kemp rendered the fee cap and expense section of § . 16-92-108 unconstitutional under the circumstances of that case.

We'take this opportunity to clarify our position and for that reason refuse to grant the State’s motion to dismiss its appeal. We hold that the fee cap statute — § 16-92-108 — is unconstitutional on its face. This accords with our statements in cases subsequent to Arnold v. Kemp where we professed that § 16-92-108 was unconstitutional. See Lynch v. Blagg, 312 Ark. 80, 847 S.W.2d 32 (1993); Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1991) (per curiam); Finley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991). Because the statute is unconstitutional there is no statutory vehicle for the assessment of part of the fees and expenses against Newton County. Accordingly, as was the case in State v. Post, supra, the portion of the trial court’s order assessing $450 against Newton County in one case and $428.44 in the other is modified to place full responsibility for payment of the award on the State.

II. CROSS APPEAL JUST COMPENSATION

Mr. Goldie contends on cross appeal that the fees awarded do not represent just compensation for a taking of his property. We recently considered this issue and concluded that just compensation did not mean full compensation but rather reasonable compensation to be determined by the trial court based on certain relevant factors. State v. Independence County, No. 92-1298 (April 5, 1993). In that case, we quoted from our decision in Arnold v. Kemp, supra, and reaffirmed our understanding of just compensation:

In awarding fees to Messrs. Arnold and Allen for reasonably expended services, we do not mean that the trial court must simply award fees based on their customary hourly charges or fixed fees for services in criminal cases of this nature. To the contrary, the trial court should determine fees that are considered “just.” In Chrisco v. Sun. Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990), we recognized various factors to be considered by a trial court in making its decision, on an award of attorneys’ fees, including the experience and ability of the attorney, the time and labor required to perform the legal service properly, the novelty and difficulty of the issues involved, the fee customarily charged in the locality for similar legal services, the time limitations imposed upon the client’s defense or by the circumstances, and the likelihood, if apparent to the court, that the acceptance of the particular employment will preclude other employment by the lawyer.

306 Ark. 304-305, 813 S.W.2d at 776. This reasoning certainly applies to the present case.

One additional factor bears mention. We note that federal judicial officers are advised by the Administrative Office of the United States Courts to be aware of the available judicial appropriation in awarding compensation. See 7 Guide to Judiciary Policies and Procedures, “Appointment of Counsel in Criminal Cases,” Ch. VI, § 6.02(B), p. 60 (Supp. 1990). Similarly, prudence dictates that our courts be aware of what government funds are available for payment of court-appointed counsel.

The trial court in the instant case made several findings in assessing reasonableness of the fees: 1) a fiat fee charged for similar cases to those handled by counsel would be less than the fee claimed; 2) the federal system does not compensate court-appointed counsel at counsel’s rates of $80 an hour for work out-of-court and $100 an hour for work in-court; 3) counsel had not been overburdened by criminal appointments in the past two years; 4) there were too many hours invested in the case; and 5) court-appointed counsel in criminal cases are not entitled to receive the maximum rate charged in civil cases. The court concluded that a reduction in fees was appropriate and set the fees accordingly.

We hold that the trial court’s findings were not in error and that its conclusions of what fees and costs to award did not constitute an abuse of discretion. See State v. Independence County, supra; Chrisco v. Sun Indus., Inc., supra; Southall v. Farm Bureau Mutual Ins. Co. of Arkansas, Inc., 283 Ark. 335, 676 S.W.2d 228 (1984). We underscore that it is incumbent upon the trial courts to decide the reasonableness of fee requests based on relevant factors such as we outline here. That is precisely what the trial court did in this case.

Affirmed as modified and remanded.

       On March 23,1983, the State moved to dismiss its appeal on the basis that this issue was decided in State v. Post, 311 Ark. 510, 845 S.W.2d 487 (1993). We deny the motion for the reason stated in this opinion.


author: Per Curiam.

text:
    Clifton HAGGANS v. STATE of Arkansas
    CR 93-353
    849 S.W.2d 959
    Supreme Court of Arkansas
    Opinion delivered April 19, 1993

      Lohnes T. Tiner, for appellant.
    No response.
   Per Curiam.

Clifton Haggans, by his attorney, has filed a motion for a rule on the clerk.

His attorney, Lohnes T. Tiner, admits by motion and brief that the record was tendered late due to a mistake on his part.

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 In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.