author: William F. Sherman, Special Justice. Steele Hays, Justice, Robert L. Brown, Justice, Alan D. Epley, Special Justice,

text:
    WAL-MART STORES, INC. v. Pam BAYSINGER
    90-234
    812 S.W.2d 463
    Supreme Court of Arkansas
    Opinion delivered July 1, 1991
    [Rehearing denied September 16, 1991.]

      Bassett Law Firm, by: Curtis L. Nebben, for appellant.

      Jim Johnson, for appellee.

       Dudley and Corbin, J J., not participating. Hays and Brown, JJ., and Epley, Sp. J., would grant rehearing.

   William F. Sherman, Special Justice.

Pam Baysinger, the appellee, filed an action against Wal-Mart, Appellee’s former employer, alleging that Wal-Mart terminated her for prosecuting a claim for injuries under the Workers’ Compensation Act, in violation of public policy and statute. The complaint also alleged that Wal-Mart was liable for the tort of outrage. The case came to trial before a jury in Benton County Circuit Court on February 15, 1990. The trial court instructed the jury on wrongful discharge, that is, wilful discrimination in the hiring or tenure of work of an individual on account of her claiming workers’ compensation benefits. There was no instruction on the allegation of outrage. The jury returned a verdict for Pam Baysinger against Wal-Mart in the sum of $24,000.00 in compensatory damages. The amount or measure of damages is not an issue on appeal.

Ms. Baysinger began working for Wal-Mart at its Warehouse No. 2 in Bentonville, Arkansas on January 14, 1982. She remained there until her termination on October 1, 1986. She received evaluations each year, sometimes two, which were generally very good, and pay increases with each evaluation, except for June, 1986, from $4.95 per hour to her final pay of $6.30 per hour. An evaluation in January, 1984 stated she would work in any area where needed. She was employed in a number of different capacities, including janitor.

On August 28,1986, Ms. Baysinger sustained a back injury while lifting a box. She suffered an acute lumbosacral strain, which caused back stiffness. She was examined and treated by Dr. Robert E. Holder, after referral by Wal-Mart. On September 2,1986, Dr. Holder placed Appellee on restrictions to lift no more than ten pounds, then on September 8,1986, no more than twenty pounds. She received physical therapy and wore a lumbosacral corset. She was allowed to work on September 11 under the lifting restrictions and with modified duty. On September 12, she was sent home. She returned to work on September 17. On September 26, 1986, Appellee suffered a recurrence of the back injury reported on August 28, 1986. The physician found that she had a recurrent injury with “thoracic spine strain.” She returned to work on September 29 and September 30, but was sent home both days because of her September 26 injury. She reported for work on October 1, 1986 and was told to see the personnel manager at Warehouse No. 2, Ernest Mika. Mr. Mika told her she was being terminated because she could not perform her job or any other job in Warehouse No. 2. On the exit interview form, Mr. Mika stated he had been advised by Dr. Holder that continued exposure to this type work could lead to more serious injury for Pam Baysinger. On another form, Mika wrote as the reason for termination that Ms. Baysinger was “unable to perform her job, limited medically,” and that Wal-Mart did not expect to rehire Ms. Baysinger. On a notice of separation form it was stated she was not eligible for reemployment.

On the request for medical care form, Dr. Holder had noted the patient should consider another type work because of the recurrent nature of her injuries. He then noted she could return to her regular duties on September 29, 1986. Appellee came to Mika’s attention when he saw the comments on the request for medical care form signed by Dr. Holder, which were not specific on her limitations. Mr. Mika’s notes show that he discussed the case with a claims supervisor for the workers’ compensation service company, who suggested they write Dr. Holder regarding the specific restrictions. Mr. Mika noted: “Depending on Dr. Holder’s reply, we should consider placing her — if available in a lighter duty job and if none available termination.” Mika directed Ms. Sheila Shepherd to find some work for Appellee at another location. Ms. Shepherd reported back that there was nothing available. On September 27, Mika wrote Dr. Holder requesting more specifics on the restrictions. Dr. Holder replied to Mika by letter dated October 1, received after the termination, observing that Appellee had a history of frequent injuries, “not always related to her low back,” that she was a small girl and “obviously not physically built for heavy labor,” and that it was difficult to know whether or not recurring injuries were due specifically to true accidents or were somewhat psychologic in nature. The doctor stated he understood that Wal-Mart had gone the “second mile in trying to find her a non-heavy duty source of employment.” He observed that her 8th grade education placed “some limits on job options.” The doctor recommended that Appellee “not do any lifting over twenty pounds” and do a “minimal amount of bending, stooping, squatting and pulling type work.” He said she could do those things as long as it was not a repetitive job, in other words, “continuous heavy lifting.” He did not say how long such restrictions should last. Dr. Holder testified he did not advise Mr. Mika that “continued exposure to that type of work” could lead to more serious injury, that he could not recall that Mika told him he could not find light duty work for Appellee, and that he did not know on October 1 Appellee was being terminated.

On October 3, 1986, Dr. Holder signed an Arkansas Rehabilitation Services General Medical Examination Record in an attempt to obtain assistance from the State for Appellee. The purpose was rehabilitation, to assist herfin obtaining training for work not involving common labor. Under “orthopedic,” the doctor stated she had “stiff back,” could not “touch toes, squat;” she had a cautious gait; and her major disabling condition was chronic low back strain and an 8th grade education.

Mr. Mika testified that if Dr. Holder had given no restrictions, Appellee would still be working at Wal-Mart, as she was a good worker. To Mr. Mika, there was nothing in the documentation to indicate the restrictions were other than permanent and Appellee had permanent limitations for lifting, bending and stooping. He stated this was why a leave of absence did not apply to her.

Pam Baysinger had had no back problems before her employment with Wal-Mart. She had sustained back injuries on October 28, 1982 and June 6, 1983, for which she received medical benefits under workers’ compensation. After her August 28, 1986 injury, Wal-Mart paid medical benefits and temporary total disability benefits from August 29, 1986 to September 21, 1986. The last payment of weekly benefits was made after her termination.

Appellant’s first argument is that the Benton Circuit Court lacked jurisdiction over the subject matter because the Workers’ Compensation Act provides an exclusive remedy for employee claims against employers and that there is no cause of action for wrongful discharge. Appellant cites Ark. Code Ann. § 11-9-105 that the rights and remedies of an employee against his employer under the Workers’ Compensation Act are exclusive. Appellant cites two Arkansas cases. In Cain v. Union National Life Ins. Co., 290 Ark. 240, 718 S.W.2d 444 (1986), this Court affirmed the dismissal of a complaint alleging an employee had suffered emotional distress, humiliation, and embarrassment from the respondent’s bad faith in not settling a workers’ compensation claim. Noting that there were statutory remedies for late payment, the Court held that the Workers’ Compensation Act provides the exclusive remedy for such a claim. The Court followed its decision in Johnson v. Houston General Ins. Co., 259 Ark. 724, 536 S.W.2d 121 (1976), the second case cited by Appellant, which also involved late payments and alleged purposeful delay in settling a valid claim. The Court stated that the rights and remedies provided in the Workers’ Compensation Act were exclusive, and the lower court’s dismissal of the complaint was affirmed. In Johnson, the employee contended the “retaliatory action on the part of employer-respondent for filing a workman’s compensation claim is actionable in a court of law,” but the Court declined to address the point. The Court is now prepared to reach this issue.

It is the general rule that “when the term of employment in a contract is left to the discretion of either party, or left indefinite, or terminable by either party, either party may put an end to the relationship at will and without cause.” Griffin v. Erickson, 277 Ark. 433, 436, 642 S.W.2d 308, 310 (1982). Generally, “employment is held only by mutual consent, and at common law the right of the employer to terminate the employment is unconditional and absolute.” Griffin v. Erickson, supra, 227 Ark. at 436.

There are well-defined exceptions to this general rule. Four exceptions to the at-will doctrine under Arkansas law were identified by the United States District Court in Scholtes v. Signal Delivery Service, Inc., 548 F.Supp. 487 (W.D. Ark. 1982). The Arkansas Supreme Court recognized the public policy exception to the general rule in Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), which involved the dismissal of Oxford, the employee, by Sterling Drug, Inc. Sterling Drug supervisors believed that Oxford had reported Sterling to the GSA for pricing violations, resulting in fines against Sterling in the sum of $1,075,000 in a 1984 settlement. Oxford sued Sterling. Drug for wrongful discharge and outrage. The Court cited its decision in M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 273, 596 S.W.2d 681 (1980), in which the Court recognized certain exceptions to the at-will doctrine, including discharge for exercising a statutory right, for performing a duty required by law, or “that the reason for the discharge was in violation of another well established public policy.” In Sterling, this court noted the development of a case law in other states accepting the public policy exception to the employment at-will doctrine. A public policy exception has been found in cases where employees were discharged for filing workers’ compensation claims. See, e.g., Kelsay v. Motorola, Inc., 74 Ill.2d 172, 384 N.E.2d 353 (1978); and Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973).

In Sterling Drug, Inc. v. Oxford, supra, 294 Ark. at 249, this Court considered whether the public policy exception to the employment at-will doctrine should be founded upon contract or tort. The Court found a cause of action in contract to be more appropriate in such cases. There is an implied understanding that an employer will not wrongfully discharge an employee. The Court adopted the contract theory of liability, observing that “if an employer’s conduct in breaking a contract of employment is sufficiently egregious or extreme, the employee can still claim tort damages on a cause of action for outrage.” Sterling Drug, Inc., supra, 294 Ark. at 249.

The public policy of a state is found in its constitution and statutes. Sterling Drug, Inc., supra, 294 Ark. at 249. The Workers’ Compensation Act provides a criminal penalty for “any employer who willfully discriminates in regard to the hiring or tenure of work or any term or condition of work of any individual on account of his claiming benefits” or “who in any manner obstructs or impedes the filing of claims for benefits.” Ark. Code Ann. § 11-9-107 (1987). It is the clear purpose of workers’ compensation laws to compensate workers who are injured on the job, and, in return for that guarantee, to give employers general assurance that claims made under the law will provide injured workers with an exclusive remedy. It is the policy of this State that valid claims will be paid. An employer violates this public policy when he discharges an employee for claiming workers’ compensation benefits under the Act.

Wal-Mart argues that Baysinger has no cause of action because the Arkansas General Assembly has not adopted a statute providing a civil cause of action for injured employees. Appellant’s argument has no merit, for the public policy exception comprehends conduct by the employer which contravenes the statute, Ark. Code Ann. § 11-9-107, and the stated objectives of the Workers’ Compensation Act. Conviction pursuant to a criminal statute requires the State to satisfy its burden of proof beyond a reasonable doubt. That is not the standard of proof required in a case alleging wrongful discharge. The criminal statute is a clear statement of a policy against discharging employees for pursuing workers’ compensation benefits. The plaintiff, Pam Baysinger, had the ultimate burden to prove with a preponderance of the evidence that she was discharged in violation of a well-established public policy of this State, more specifically, that policy set forth in Ark. Code Ann. § 11-9-107 (1987).

The burden of proof to establish a prima facie case of wrongful discharge is upon the employee. See Larson, The Law of Workmen’s Compensation, Vol. 2A, § 68.36(c) (1990). Aprima facie case is made by substantial evidence that the workers’ compensation claim was a cause of the discharge. When an employee has made a prima facie case of retaliation, or wrongful discharge, the burden shifts to the employer to prove that there was a legitimate, non-retaliatory reason for the discharge. See Larson, The Law of Workmen’s Compensation, Vol. 2A § 68.36(d) (1990). Such a reason might be the one offered by WalMart in the present case, that Appellee did not have the physical ability to do her job, or any other job which might have been provided at that point in time. The court did not instruct the jury on the employer’s burden to prove a legitimate reason for the discharge, and no such instruction was requested by either party. The evidence offered to support Appellant’s reason for terminating Appellee was not convincing.

There was substantial evidence to support the jury verdict for wrongful discharge. The verdict may be supported by direct or circumstantial evidence. As it is quite unlikely that an employer would announce that the employee was being discharged because of a workers’ compensation claim, the injured employee must normally rely upon circumstantial evidence. There is sufficient evidence in the record that Wal-Mart discharged Pam Baysinger because of the workers’ compensation claim. After her August 28, 1986 injury, she received workers’ compensation benefits. There was a recurrence of her injury on September 26. The personnel supervisor stated on the exit interview form he was told by the physician that continued exposure to this type of work could lead to more serious injury for the claimant, but the physician testified he had no recollection of saying such a thing. Otherwise, why would the physician release the claimant to return to work on September .29? There was too much unknown in Pam Baysinger’s condition for the employer to conclude that she could no longer perform her work. A warehouse operations manager testified there were several types of light duty jobs which required little or no lifting, but Ms. Baysinger was not given an opportunity to fill one of them because she lacked the mathematical skills. She also was not given an opportunity to request medical leave in accordance with the Wal-Mart Associates’ Handbook. The employer terminated Appellee, hurriedly, without adequate information of her medical condition or of the likelihood that she would heal.

Wal-Mart contends that no cause of action exists for retaliatory discharge until the employee files a claim with the Workers’ Compensation Commission. The Court rejects this argument, which if allowed would permit the employer to discharge an injured employee before the employee would have had an opportunity to file a claim. Under the Arkansas Workers’ Compensation Act, an injured employee may receive full benefits without ever filing an A-7 Form with the Workers’ Compensation Commission. The record indicates that an A-7 Form was filed on November 19, 1986. There is a division in other jurisdictions which have addressed this issue, but we find the better rule to be that it is not required for the injured employee to file a formal claim to create the cause of action. It is sufficient that workers’ compensation benefits are anticipated from the injury, whether or not a claim has been or will be filed. See Wright v. Fiber Industries, Inc., 60 N.C.App. 486, 299 S.E.2d 284 (1983).

Appellant also argues that it is not responsible because a separate company, Corporate Service (CSI), actually processes workers’ compensation claims on behalf of Wal-Mart. The record shows that injured workers are paid through funds from WalMart. The Wal-Mart personnel supervisor discussed Appellee’s claims with a CSI representative on the day of her last injury. Wal-Mart is not insulated from liability through its employment of a separate service corporation to handle its workers’ compensation claims.

Appellant presents two additional arguments, both alleging errors in the jury selection. Appellant contends first that the court erred in disqualifying any prospective juror who owned WalMart stock, regardless of amount. Twenty-two prospective jurors who owned Wal-Mart stock were excused for cause. There is scant authority on this issue, but the few cases hold it is reversible error for a trial court to refuse to strike a juror who owns securities in a corporation which is party to the litigation. See Chestnut v. Ford Motor Company, 445 F.2d 967 (4th Cir. 1971); Wallace v. Alabama Power Company, 497 So.2d 450, 453-54 (Ala. 1986); Southern Bell Telephone & Telegraph Company v. Shepard, 204 S.E.2d 11, 12 (S.C. 1974).

The issue of a juror’s qualifications lies within the sound discretion of the trial court. Montgomery v. State, 277 Ark. 95, 97, 640 S.W.2d 108 (1982). The appellant, Wal-Mart Stores, Inc., occupies a predominant economic position in the Bentonville, Arkansas area. It was not an abuse of discretion for the trial court to excuse for cause all jurors who owned stock of the defendant corporation.

The appellant contends further that the lower court committed error in failing to strike a prospective juror who was a retired labor union official. Appellant’s counsel asked him if he would be “rooting for Mrs. Baysinger.” The prospective juror replied, “I fought for people like that.” Appellant’s counsel asked the prospective juror “do you feel that because of that you could give one hundred percent partiality to this case today?” The prospective juror replied, “I think so.” Appellant’s counsel asked that he be excused. The Court, inquiring as to the veniremen’s qualifications, asked whether he could set aside any past experiences, could decide the case on the evidence presented, and could be fair to both parties; and the prospective juror responded affirmatively. It is apparent that the prospective juror did not understand the question concerning his “partiality,” thinking the question asked for his “impartiality.”

Nothing further was said by the Court or by counsel concerning the prospective juror’s impartiality or his qualifications. He was called as a juror, and Appellant used a peremptory challenge to strike him. Three other veniremen identified themselves as former labor union members, and no objection was made. Appellant bears the burden of proving a prospective juror’s disqualification. Montgomery v. State, supra, 277 Ark. at 97. There was no abuse of discretion by the trial judge in failing to strike the juror for cause.

Affirmed.

Dudley and Corbin, JJ., not participating.

Hays and Brown, JJ., and Special Justice Alan Epley dissent.

Steele Hays, Justice,

dissenting. I have no quarrel with the view that the public policy of this state proscribes retaliatory discharge by an employer because an employee files a workers’ compensation claim. Indeed, that policy is expressly embraced in the act: Ark. Code Ann. § 11-9-107 (1987) provides that an employer who willfully discriminates against any employee for claiming benefits is subject to fine and imprisonment. However, since the remedies provided by the legislature for the breach of that policy do not include a cause of action for damages, it is, for reasons I will attempt to demonstrate, beyond the power of this court to fashion that remedy on its own.

My disagreement with the majority is that I believe the judicial branch has no power to broaden the scope of the Workers’ Compensation Act, nor any power to create a remedy not provided in the act. That power belongs to the legislature alone under the express provisions of Amendment No. 26. Given the unique status of the workers’ compensation law in Arkansas, our function, I believe, is decidedly narrow, consisting only of such interpretative role as necessarily attends appellate review. In fact, this court has pointedly observed that its authority is so restricted in workers’ compensation cases that if the legislature had not provided for court review, then the courts could not have considered workers’ compensation cases at all. J. L. Williams & Sons, Inc. v. Smith, 205 Ark. 604, 170 S.W.2d 82 (1943).

The Workers’ Compensation Act was passed under the authority of Amendment No. 26 to the state constitution, which was initiated by the people and adopted by them in 1938. By the amendment the people directed that the General Assembly shall have power to provide “the means, methods, and forum for adjudicating” workers’ compensation claims (my emphasis). The legislature sent three bills to the governor. Two were vetoed. One was signed and then abated by referendum petitions until finally approved by the people in 1940. Thus, the people have been keenly involved in the adoption, drafting and approval of the legislation produced by the General Assembly at their direction.

The act itself is comprehensive and thorough and we have declared it “plain and unambiguous.” Odom v. Ark. Pipe & Scrap Material Co., 208 Ark. 678, 187 S.W.2d 320 (1945). It provides in minute detail for every eventuality arising from the employment relationship. For example, if the employer fails to secure payment of benefits, the employee has the option between the benefits due under the act or asserting a cause of action for damages at common law without the crippling defenses which were available to an employer at common law. Ark. Code Ann. § 11 -9-105(b)(1) (1987). That same section, § 11-9-105, provides that the rights and remedies “shall be exclusive of all other rights and remedies of the employee” or anyone claiming under them.

Over the half century that the Workers’ Compensation Act has existed in Arkansas, this court has withstood a battery of legal challenges to the act, including ingenious attempts to enlarge its scope, citing again and again §11-9-105 and declaring that rights and remedies granted to an employee “shall be exclusive of all other rights and remedies.” The act is a finely tuned trade-off of common law liabilities and defenses between industry and labor by which each class gave up certain rights in return for certain benefits. Young v. G.L. Tarlton, Contractor, Inc., 204 Ark. 283, 162 S.W.2d 477 (1942) summarized the end result:

The act here in question takes away the cause of action on the one hand and the ground of defense on the other and merges both in a statutory indemnity fixed and certain. If the power to do away with a cause of action in any case exists at all in the exercise of the police power of the state, then the right of trial by jury is therefore no longer involved in such cases. The right of jury trial being incidental to the right of action, to destroy the latter is to leave the former nothing upon which to operate.

By analogy, divorce in Arkansas is purely statutory, and just as this court has no power to create a ground for divorce not expressly provided by the legislature, it has no power to enlarge, or lessen, the scope of the Workers’ Compensation Act. In that vein, we said in Barth v. Liberty Mutual Ins. Co., 212 Ark. 942, 208 S.W.2d 455 (1948):

The cause of action of one claiming under the Workmen’s Compensation Act is purely statutory, and that one claiming under its provisions ‘has no claim or cause of action except the one given him’ by the act.

In the Odom case, supra, speaking of the Workers’ Compensation Act, we wrote:

Its purpose and effect was to substitute, as to employment embraced within its terms, the liability created by it for any and all liability of the master arising from the death or injury of his servant. The remedies provided by [the workers’ compensation law], are, unless the employer fails to secure the payment of compensation as required by the act, exclusive. [My emphasis.]

In Huffstettler v. Lion Oil Co., 110 F. Supp. 222 (W.D. Ark. 1953), Judge Miller, in examining the exclusivity of Arkansas workers’ compensation law, recognized the power of the legislature to create new causes of action under Amendment 26 and that the only cause of action by an employee against an employer now existing is where the employer fails to afford the benefits provided under the act.

In Seawright v. U.S.F. & G. Co., 275 Ark. 96, 627 S.W.2d 557 (1982), referring to Ark. Code Ann. § 11-9-105, we said:

The rights and remedies herein granted to an employee ... on account of injury or death, shall be exclusive of all other rights and remedies of such employee, his legal representative, dependents, or next of kin, or any one otherwise entitled to recover damages from such employer. . . .

And in Brothers v. Dierks Lumber & Coal Co., 217 Ark. 632, 232 S.W.2d 646 (1950), Justice Robert A. Lefler, in upholding the constitutionality of the act, referred to the right of the legislature to create new causes of action where none before existed.

A great many more cases could be cited. Suffice it to say that as recently as 1986, this court stated with firmness and unanimity that “any change concerning the exclusivity of the statutory remedies must come legislatively.” [My emphasis.] Cain v. National Union Life Ins. Co., 290 Ark. 240, 718 S.W.2d 44 (1986).

In sum, three provisions of the Workers’ Compensation Act make it crystal clear that the legislature acted with purpose in not fashioning a cause of action at common law for retaliatory discharge by employers: one section provides that remedies shall be exclusive of all other remedies [§ 11-9- 105(a)], one section provides that an employee does have a cause of action for damages at common law where the employer fails to secure benefits under the act [§ 11-9-105(b)(1)] and yet another section provides penalties for the employer who willfully discriminates against an employee for filing a claim for benefits. [§ 11-9-107]. Hence, the legislature recognized the likelihood of retaliatory actions by employers and provided the measures to penalize such actions. Those remedies do not include the action now before us and it is not within our power to create it.

The comments of Justice Robert C. Underwood of Illinois in reference to judicial self-restraint are especially apt:

It is only stating the obvious to say that it is fundamental in our system of government that the law-making function is vested in the legislative branch. The majority’s intrusion into the legislative field in this case typifies the lack of judicial self-restraint which has been a source of concern and comment throughout our history. Mr. Chief Justice Marshall spoke to it as follows: “[The judicial] department has no will in any case.
* * * Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or in other words, to the will of the law.” (Osborn v. Bank of United States (1824), 22 U.S. (9 Wheat.) 738, 866, 6 L.Ed. 204, 234.) It is essential to a preservation of the separation of powers that those of us who serve in the judicial branch subordinate our desires and preferences to the actions of the legislative and executive branches as long as those are expressed in constitutional terms.

Mr. Justice Harlan, dissenting in Wesberry v. Sanders (1964), 376 U.S. 1, 48, 84 S.Ct. 526, 551, 11 L.Ed. 481, 509, phrased it thus:

The Constitution does not confer on the Court blanket authority to step into every situation where the political branch may be thought to have fallen short. The stability of this institution ultimately depends not only upon its being alert to keep the other branches of government within constitutional bounds but equally upon recognition of the limitations on the Court’s own functions in the constitutional system.

I would reverse and dismiss.

Special Justice Alan D. Epley joins in this dissent.

Robert L. Brown, Justice,

dissenting. Though I recognize an exception to the at-will doctrine for firings caused by filing a worker’s compensation claim, the exception should not govern the facts of this case where a claim had not been filed at the time Pam Baysinger was fired. Baysinger was terminated because, regrettably, she could no longer do the work due to a back injury. The result was harsh and arguably unfair, but that was the reason for her firing. The majority engages in complete speculation when it holds that her firing was tied to an “anticipated” worker’s compensation claim.

As in the case of Mapco, Inc. v. Payne, 306 Ark. 198, 812 S.W.2d 483 (1991), there was no substantial evidence, circumstantial or otherwise, of motive or intent by Wal-Mart to violate the public policy of this state as set out in Ark. Code Ann. § 11-9-107 (1987). By this decision and Mapco, however, this court, as a practical matter, has embraced a theory of strict liability when it comes to worker’s compensation claims and employee terminations, regardless of the extenuating circumstances. To uphold the public policy of this state is one thing. To find a violation of that public policy simply premised on the juxtaposition of two events — the filing of the claim and termination — goes too far. Some evidence of intent or motive to violate the state’s public policy must be shown.

But the facts in this case also differ in a major respect from those in Mapco. Here, Baysinger’s firing preceded the filing of her claim. After she was terminated, Wal-Mart could in no way obstruct or impede her claim under Ark. Code Ann. § 11-9-107. She was completely free to pursue her claim or not. To hold that somehow the firing did obstruct her claim does not logically follow.

The majority cites as sole authority for its conclusion a North Carolina case that a firing before a claim was filed amounted to retaliation by the employer. See Wright v. Fiber Industries, Inc., 299 S.E.2d 284 (N.C. App. 1983). Though I disagree with that holding for reasons already stated, I further note that the North Carolina statute setting out the state’s public policy is decidedly different from our own. The North Carolina statute creates a civil remedy and specifically prevents discharges and demotions because an employee has instituted or caused to be instituted a claim. N.C. Gen. Stat. Sec. 97-6.1 (1985). Our statute, on the other hand, is a criminal statute and speaks only of obstructing and impeding the filing of claims.

To hold that Baysinger’s firing was in retaliation for some future claim she might file constitutes a conjectural leap I cannot make. The public policy exception is not appropriate for the facts of this case.

I respectfully dissent.

Hays, J., joins.

Alan D. Epley, Special Justice,

dissenting. I join in Justice Hays’ dissent. It occurs to me that since the public policy of the state is set forth in its constitution and statutes, the appellee, Mrs. Baysinger, is also bound by the public policy set forth in Arkansas Code Annotated § 11-9-107 (1987). That public policy is (as Justice Hays states) that it is the policy of this state that all actions for damages on account of injury between employer and employee are the exclusive province of worker’s compensation, except where the employer fails to secure the payment of compensation. The majority opinion does not address this conflict in the public policy of the state.

However, I further dissent from the majority opinion finding substantial evidence to support the verdict of the jury.

It has been said that hard cases make bad law. I think this is a hard case. The majority opinion attempts to find evidence that the public policy of the State has been violated when an employer states on an exit interview form that he was told by the physician that continued exposure to this type of work could lead to more serious injury for the claimant. The physician (according to the majority) testified that he had no recollection of saying such a thing. Earlier in the opinion the majority interprets the testimony of Dr. Holder to be that he flatly did not advise Mr. Mika that continued exposure to this type of work could lead to more serious injury. Either way, how this fact has any logical bearing on this case has not been demonstrated by the majority. The only connection the appellee has been able to establish factually, in my opinion, is the contact between Mr. Mika and Mr. Scissors, the CSI representative. But a review of the testimony of both Mr. Mika and Mr. Scissors does not reveal any facts supporting the contention that the appellee’s firing was in retaliation for filing a worker’s compensation claim. The suggestion of Mr. Scissors was that if the employer could not find lighter work for the employee to do, then her employment should be terminated. The employer adopted this advice. But this does not provide evidence to substantially support the jury verdict. The evidence in this case and certainly the subsequent testimony of Doctor Holder indicates that it would be reasonable for anyone to conclude that if Mrs. Baysinger continued in her work of heavy lifting, that she would risk suffering a permanent and possibly debilitating injury. The evidence in this case which I feel is substantial is that the employer discharged Mrs. Baysinger before she suffered permanent injury. Even though she received worker’s compensation payments, there is no substantial evidence that she was fired because of that fact. There is no public policy in this state that requires an employer to keep an employee whom the employer recognizes has become physically unsuited for a job. The distinction attempted here is that in a case such as this, the evidence of the plaintiff must prove that the discharge was in retaliation for a worker’s compensation claim, and not to keep the employee from suffering further injury attempting to do the work. The majority suggests that the employer acted too quickly and without sufficient medical information about the appellee’s condition and apparently cites these opinions as facts supporting the jury’s verdict. There is nothing in the record, either expert testimonies or otherwise, that indicates that the speed with which the decision to terminate was made is substantial evidence supporting the jury’s decision. In fact, the record reflects that the decision was not made until after a search for another job was made by the employer and after telephonic consultation by the employer with the treating physician. The record is clear that the physician advised that the appellee was no longer physically able to accomplish her former work. There is no substantial evidence in this record that Mrs. Baysinger’s firing was related to her claiming worker’s compensation benefits.

The evidence required of the employee in such a case as this must show, in the language of Arkansas Code Annotated § 11-9-107 (1987), that the employer has “willfully discriminate(d)” in regard to the tenure of work of the employee. It is my opinion that the record only demonstrates slight evidence of willful discrimination on the part of the employer against the employee and no evidence at all that the discharge was because of the past filing of worker’s compensation claims. Therefore, in my opinion, the case should be reversed.

I agree with that portion of the majority opinion addressing the issues regarding jury selection raised by the appellant.

        Kelsay v. Motorola, Inc., 74 Ill. 2d 172 384 N.E.2d 353 (Ill. 1978).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Robert Lee FELLOWS v. STATE of Arkansas
    RC 91-32
    810 S.W.2d 338
    Supreme Court of Arkansas
    Opinion delivered July 1, 1991

      John R. Hollis, for appellant.
    No response.
   Per Curiam.

Petitioner, Robert Lee Fellows, by his attorney, John R. Hollis, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to his failure to timely file the record in this court. See Ark. R. App. P. 5(a).

We find that such failure, 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); Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In re: Belated Appeals in Criminal Cases, supra.


author: Robert H. Dudley, Justice.

text:
    James HARRIS, et al. v. Kenneth ROBERTSON, et al.
    91-66
    813 S.W.2d 252
    Supreme Court of Arkansas
    Opinion delivered July 8, 1991

      Ian W. Vickery, for appellants.

      Compton, Prewett, Thomas & Hickey, by: William I. Prewett, for appellees.
   Robert H. Dudley, Justice.

In this appeal of a boundary line dispute, we set aside a finding of fact by the chancellor and hold that the boundary line was established by acquiescence.

The facts, as viewed in the light most favorable to the appellees, are as follows. Gary and Brenda Stratton acquired eleven (11) acres of land about four (4) miles north of El Dorado in 1975. They lived in the house located on the eleven-acre tract for only a short time before they decided that they wanted a new house. In planning to build the new house they decided to divide the eleven-acre tract by selling three (3) acres, which included the existing house, and retaining the other eight (8) acres on which to build their new house. They offered to sell the existing house and three acres through a realtor. In 1977, Kenneth and Virginia Robertson accepted the offer. At this time there was no legal description of the three-acre tract. Consequently, Gary Stratton and Kenneth Robertson walked over the land, agreed on the boundaries, and fixed all corners and turning points with iron pins. The Strattons next hired a surveyor, F.M Methuin, and requested that he determine the legal description of the three (3) acres according to the location of the iron pins. The surveyor completed his work in April of 1977 and gave the parties a legal description that was used in the warranty deed from the Strattons to the Robertsons. Unfortunately, the legal description was in error and did not describe the tracts according to the agreed line. It described the three-acre tract as extending about fifteen (15) feet into the eight-acre tract on the west side and as extending a few feet into the eight-acre tract on the north side. At the time, however, no one knew of the error in the deed.

In 1983, the Strattons sold their eight-acre tract to the Evanses. The boundaries were again represented as being the iron pins. The Stratton’s deed to the Evanses described the eleven (11) acres but excepted the three (3) acres deeded to the Robertsons. Thus, the Evanses’ deed contained the same error. In 1988, the Evanses conveyed the eight-acre tract to James and Sandra Harris. The Harrises used the same description but also thought the iron pins represented the boundaries. Soon thereafter, the Harrises decided to build a fence on the boundary line as marked by the iron pins. They set fence posts along the line between iron pins and began construction of the fence.

The Robertsons apparently thought that some of the fence posts extended past the iron pin line and onto their property. They employed a surveyor, Ted Pill, to shoot a line for the posts. Mr. Pill’s measurements showed that some of the fence posts were a little out of line according to the iron pins, but that according to the legal description, the Harrises were fifteen (15) feet over onto the Robertson’s land. The Harrises repositioned the fence posts to be on the iron pin line.

The Robertsons then employed another surveyor, Samuel Ball, to conduct a complete survey of their property and plot the results. He entered the bearings and distances in a computer plotter and found the line as described in the deeds was in fact about fifteen (15) feet west of the line established by the pins. He testified that the first surveyor who set out the original metes and bounds description of the three-acre tract made an error in computing the angles and that caused the difference. In 1988, the Robertsons sued the Harrises and asked for the removal of the fence on the iron pin line. The chancellor held that the description in the deed prevailed over the iron pin line and ordered the fence removed.

In Seidenstricker v. Holtzendorf, 214 Ark. 644, 217 S.W.2d 836 (1949), this court set out rather completely our law on boundaries by acquiescence. We wrote:

Acquiescence, by owners of adjoining lands, in a boundary line, as shown by a division fence, for more than seven years will ordinarily confirm the boundary line as thus located, even though the fence may not be placed on the true line between the tracts.
In the case of Gregory v. Jones, 212 Ark. 443, 206 S.W.2d 18, dealing with a question similar to the one involved here, we said: “In Goodwin v. Garibaldi, 83 Ark. 74, 102 S.W. 706, Mr.. Justice Riddick, in sustaining a long-existing boundary between adjacent owners, quoted the classic language of Hon. U.M. Rose, as found in Cunningham v. Brumback, 23 Ark. 336: ‘ . . . better that ancient wrongs should be unredressed than that ancient strife should be renewed.’ Robinson v. Gaylord, 182 Ark. 849, 33 S.W.2d 710, is another case in which an old line was sustained, even against a new survey. Appellee argues that the original rail fence line was established by a mutual mistake and should be changed to the 1946 line, and cited Randleman v. Taylor, 94 Ark. 511, 127 S.W. 723, 140 Am. St. Rep. 141, as authority for such contention. Furthermore, appellee says that there was no dispute prior to the establishing of the rail fence line, so—appellee says—the rule stated by Chief Justice Hart in Robinson v. Gaylord, supra, and restated in Peebles v. McDonald, 208 Ark. 834, 188 S.W.2d 289, does not apply to this case. It is true that in this case the original rail fence line was established without a prior dispute as to boundary; but the recognition of that line for the many intervening years (34 in this case) shows a quietude and acquiescence for so many years that the law will presume an agreement concerning the boundary. In Deidrich v. Simmons, 75 Ark. 400, 87 S.W. 649, there had been no dispute prior to the establishment of the fence line which had been accepted as the common boundary for many years; and in that case Justice McCulloch, speaking for this court said: ‘The proprietors of adjacent lands may by parol agreement establish an arbitrary division line, or an agreement may be inferred from long-continued acquiescence and occupation according to such line, and they will be bound thereby.’ So in the case at bar the recognition of a common boundary for a long period of time is evidence of agreement and acquiescence, which may well exist without the necessity of a prior dispute. See 8 Am. Juris. 804. As stated in the annotation in 69 A.L.R. 1491: ‘... where the owners of adjoining land occupy their respective premises up to a certain line, which they mutually recognize and acquiesce in as the boundary line for a long period of time,... they and their grantees are precluded from claiming that the boundary line thus recognized and acquiesced in is not the true one, although such line may not be in fact the true line according to the calls of their deeds.’ ”

The proof in this case established that the parties and their grantees acquiesced in the boundary set out by iron pins for longer than seven (7) years. Accordingly, we reverse the chancellor and remand this case for entry of a decree consistent with this opinion. That decree must locate the boundary by description. In Rice v. Whiting, 248 Ark. 592, 452 S.W.2d 842 (1970), we explained that where a boundary line is involved, the decree, the permanent record, should describe the line with sufficient specificity that it may be identified solely by reference to the order and without reference to a plat which may not be in existence in a few years.

As stated at the beginning of this opinion, we are setting aside a finding of fact by the chancellor. We only do so when such a finding is clearly erroneous. ARCP Rule 52 (a); Kinghorn v. Hughes, 297 Ark. 364, 761 S.W.2d 930 (1988). The chancellor in this case based his ruling on the specific finding that:

Defendants have not proven that when plaintiffs acquired the property from the Strattons that the grantors and grantee intended that the boundary lines of the property be fixed by the iron pins.

Because we give such deference to a Chancellor’s finding of fact, we set out some of the testimony that causes us to reverse the finding. Gary Stratton, the grantor who divided the eleven (11) acres testified:

Q: Okay. Now, if you would, tell the Court if you had the occasion to meet with the Robertsons or either of them on the property to discuss the terms of the sale?
A: Yes, we did.
Q: More than once?
A: Pardon?
Q: More than once?
A: I recall one time—yes, more than once.
Q: And I suppose at that time you had not already decided exactly where the three (3) acres would be. Is that right?
A: Not exactly, no, sir.
Q: And during the course of your negotiations did you determine where you wanted the corners of that property to be located?
A: Yes. Mr. Robertson and myself discussed it.
Q: And as a result of those discussions, did you actually decide where the corners were to be located?
A: Yes.
Q: So the pin was to be set to the west so that he would retain the oak tree?
A: That’s correct.
Q: Then you walked back to where?
A: Well, to this pin here (indicating on survey).
Q: Okay, and then from there where?
A: Then marked this—this pin here (indicating on survey).
Q: Okay. And there were pins placed, as I understand it, on all these various corners?
A: Yes.
Q: Let me repeat the question then. Were your instructions to Mr. Methuin [first surveyor] with regard to this survey either to locate exactly where the stakes and pins were in the ground and create a description from those pins, or was he to survey to determine where the pins should go?
A: No. I directed the surveyor to the pins myself and I asked him to survey the property according to those pins.
Q: Okay. Do you recall whether or not, when the property was surveyed in 1977, whether a boundary line was flagged and a path was cleared, consistent with what Mrs. Robertson recalled?
A: When the surveyors surveyed it, they flagged the line, yes?
Q: Okay.
A: And had to cut the brush out to make the survey, yes, part of it.
Q: And at the end of this flagged and cleared path, was an iron pin located, to the best of your knowledge? Is there an iron pin at the end of the . . .
A: Yes.
Q: Now, Mr. Stratton, now that you were neighbors, I guess one of the good things that came out of that was that you didn’t have quite as much to mow, but if you would, would you tell the Court, what were the practices of you and what were the practices that you observed Mr. Robertson with regard to mowing down that imaginary line between those two pins?
A: I took care of what was mine and he took care of what was his.
Q: And was it basically a line that was between the two pins that chain link fence sat onto, as well?
A: Yes.
Q: And this continued to be the conduct of both the Robertsons and your family from 1977 until 1983 when you sold it?
A: Yes, sir.

(Tr. p. 111-117)

Kenneth Robertson, a plaintiff and an' appellee, and a grantee of the three-acre tract who is now claiming the erroneous description controls, testified:

Q: Okay. Now, Mr. Robertson, were you aware at the time that you purchased the property in 1977 that there were iron pins placed at various corners to your three (3) acres?
A: I was, yes, sir.
Q: Can you tell the Court whether any corner, to the best of your knowledge, did not have an iron pin?
A: At the time, they all—they was all there.
Q: Okay. Tell the Court what you and Mr. Stratton did. Now, this was before you acquired the land?
A: Okay, he walked me to each corner, pointed it out to me, where the boundary lines was . . .
Q: Mr. Stratton took you to this point, this point, (indicating on survey)?
A: Yeah.
Q: And were there points up here, too? Up in the front? A: Yes, sir.
Q: And so you just . . .
A: Well, yeah, they was . . .
Q: So either you or Mr. Stratton, or both of you, at some point had to decide where those corners were?
A: Yeah, he—we went to each corner.
Q: Okay.
A: I don’t remember going right to the one on the front on the right, but to the west, and south, and the east, we went to them.
Q: And you went to those corners, and—was this before you bought the land? Or after?
A: It was while I was in the process of buying it.
Q: Okay.
A: I don’t remember . . .
Q: So, it was probably after you’d showed some initial interest, but before you actually closed the deal?
A: Yeah, probably. Yes, sir.
Q: And at that time Mr. Stratton had put those pins in and the two of you walked to them and made sure you knew where they were, and those pins—what was the purpose of those pins as you understood it?
A: Supposed to have been the boundary lines.
Q: Okay. Now you know, I want to ask you something, Mr. Robertson. I mean, what I hear you saying is that if the legal description in your deed gives you a little more land, then what Mr. Ball [surveyor] says, is what you want. Is that right?
A: Well, what Mr. Ball-—according to Mr. Ball here, this is what I should have.
Q: Okay. And even though it goes beyond the pins, that’s what you should have because that’s what it says in the deed?
A: I should have on-—what my deed says is what I want, and Mr. Ball has got it marked here right, and that’s what I want and that’s all, that’s it.

(Tr. p. 89-92.)

Virginia Robertson, the other grantee of the three-acre tract, and a plaintiff below, testified:

Q: Okay, And do I understand your testimony correctly that the boundaries of this three (3) acres when you purchased it in 1977 were set by the placing of various iron pins between the various lines?
A: Yes.

(Tr. p. 101.)

Sandra Harris, one of the subsequent grantees of the eight-acre tract and a defendant below, testified:

A: We walked with Gary Stratton over the entire property — well, he showed us the pins that were placed, and then we walked the entire property ourselves.
Q: Okay. And did you find pins at all the corners?
A: Yes.
Q: And what, if any, understanding did you have as to how those pins set relative to the boundaries of the property?
A: It was my understanding that that was the property we were buying.

(Tr. p. 128.)

Samuel Ball, the surveyor who used the computer plotter, found the iron pins still in place in 1988. He testified:

A: The corners that I had were corners that were in place.
Q: All right, they were already in place?
A: Yes, sir.
Q: The corners that you had and that you looked at at that time?
A: Yes, sir.
Q: And would you describe how those corners were in place?
A: They were iron pipes that were driven into the ground.
Q: All right. Now, let me ask you a few questions, then. Your survey, which has been introduced as Plaintiffs’ Exhibit Number 3, reflects that you did find fencing on certain of the boundaries, found iron pins, I believe, at all corners.
A: Yes, sir.
Q: Is that correct?
A: Yes, sir.
Q: And the fact that you found iron pins at all the corners is reflected on your survey by the FIP?
A: It is.

(Tr. p. 60-67.)

Finally, there was no testimony from either of the parties that he or she had ever occupied any land over or across his or her boundary as established by the iron pins. In fact, on those the parts of the property which were mowed, each mowed up to the line established by the iron pins. The rest of the property was in the woods. Accordingly, we set aside the chancellor’s finding of fact and reverse and remand for entry of a decree consistent with this opinion.

Reversed and remanded.


text:
    IN THE MATTER OF THE ESTATE OF Glenn W. SHARP, deceased
    91-2
    810 S.W.2d 952
    Supreme Court of Arkansas
    Opinion delivered July 8, 1991

      Malcolm R. Smith, P.A., by: Malcolm R. Smith, for appellant.

      Wright, Lindsey & Jennings, by: Alston Jennings, for appellee.
   Robert H. Dudley, Justice.

This is a proof-of-will case in which only one disinterested witness testified that the testator signed the will. The probate court admitted the will to probate. We reverse and remand.

The instrument offered as a will purportedly contained the testator’s signature, and, although it did not contain an attestation clause, two (2) people signed it as witnesses. At trial, three (3) witness testified about the testator’s signature. The first witness testified that he signed as an attesting witness and that he recognized the signature on the will as the testator’s. The second witness, also an attesting witness, did not recognize the testator’s purported signature, and testified that she had no recollection of the will or of the events surrounding it. The third witness, who was not an attesting witness and who stood to gain all of the decedent’s property if the will was admitted, testified that the signature on the will was the testator’s.

Ark Code Ann. § 28-40-117(a) (1987) provides:

Proof of will.
(a) An attested will shall be proved as follows:
(1) By the testimony of at least two (2) attesting witnesses, if living at known addresses within the continental United States and capable of testifying; or
(2) If only 1 or neither of the attesting witnesses is living at a known address within the continental United States and capable of testifying, or if, after the exercise of reasonable diligence, the proponent of the will is unable to procure the testimony of two (2) attesting witnesses, in either event the will may be established by the testimony of at least two (2) credible disinterested witnesses. The witnesses shall prove the handwriting of the testator and such other facts and circumstances, including the handwriting of the attesting witnesses whose testimony is not available, as would be sufficient to prove a controverted issue in equity, together with the testimony of any attesting witness whose testimony is procurable with the exercise of due diligence. [Emphasis added.]

This statute means that at least two (2) attesting witnesses, if competent and available, are required to prove the signature of the testator. Children’s Mercy Hosp. v. Chick, 262 Ark. 520, 559 S.W.2d 3 (1978).

The probate judge was aware that the will was not proved by the two (2) attesting witnesses as required by the statute but found that there was a presumption of proper execution under our case of Anthony v. College of the Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944). While we appreciate the difficulty the probate judge had in understanding that case, we think she misinterpreted it. It was decided before the present Probate Code was adopted. At that time, the statute setting out the mode or method of execution of a will, while not identical, was similar to today’s statute. Compare section 14512 of Pope’s Digest with Ark. Code Ann. § 28-25-103 (1987). However, the statutes providing for proof of a will were different. Compare sections 14535, 14536, and 14537 of Pope’s Digest with Ark. Code Ann. § 28-40-117(a) (1987). With those differences in mind, the case can now only stand for the proposition that once the signing of a will is proven by the two (2) attesting witnesses, and there is no suggestion of fraud or undue influence, there is a presumption that the testator declared to the attesting witnesses that the instrument was his will; and that he either signed in front of them or acknowledged to them his signature on the instrument; and that the attesting witnesses signed at the request of and in the presence of the testator. See Ark. Code Ann. § 28-25-103 (1987).

Reversed and remanded.


author: Steele Hays, Justice.

text:
    Raymond J. BARRETT and Hallie B. Barrett v. POINSETT County, Arkansas
    91-18
    811 S.W.2d 324
    Supreme Court of Arkansas
    Opinion delivered July 8, 1991

      Bill Bristow, P.A., for appellants.

      L.D. Gibson, for appellee.
   Steele Hays, Justice.

This appeal is from a grant of a summary judgment motion for the government on a claim for inverse condemnation. We affirm the trial court.

Raymond and Hallie Barrett, appellants, own land in Poinsett County, Arkansas. They entered into a contract on November 17, 1986, with the governments of various cities in Craighead County aligned in an entity calling itself the “Northeast Arkansas Regional Solid Waste Disposal Authority.” The Barretts were to sell the Poinsett County land to the Authority for use as a landfill for Craighead County. Under the agreement the Authority acquired an option to purchase the property for a price of $750,000. The option expired after March 31, 1987.

Appellants allege that Poinsett County was opposed to using land in its county as a solid waste disposal landfill, and so in response to the Barrett contract, Poinsett County passed a zoning ordinance in December of 1986, preventing any property in the township in which the Barrett land was located from being used for landfill purposes.

On January 15, 1987, the Barretts filed suit in Poinsett County contending that the ordinance in question was illegal and seeking a permanent injunction to prevent the effect of said ordinance. However, while suit was pending, and before closing of the sale pursuant to the terms of the Barrett contract, the Arkansas legislature passed legislation preventing one county from placing a landfill operation in an adjoining county without the consent of the receiving county.

In November 1987, appellants filed an amended petition for declaratory judgment, injunctive relief and damages, claiming there had been a temporary taking of the Barretts’ land by Poinsett County. Appellants contend the Poinsett County action enacting the ordinance delayed the closing of their contract by an illegal spot zoning ordinance; that if it had not been for the Poinsett County ordinance, appellant would have completed their transaction with the Authority prior to the legislative action.

On November 28, 1989, the trial court rendered its judgment. The court assumed for the purpose of the ruling that the zoning ordinance of Poinsett County was unconstitutional. However, the court found the facts did not give rise to inverse condemnation, and that the only other cause of action that might arise would be a tort action for interference with contractual relations which could not prevail because Poinsett County would be protected by governmental immunity.

From that order, appellants bring this appeal. They challenge only the trial court’s finding that there was no inverse condemnation. While we do recognize a cause of action for inverse condemnation under appropriate circumstances, see Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990), we find the trial court correctly granted summary judgement for appellees in this case.

It is not clear from the trial court’s order whether it found there was no cause of action because of the nature of the injury or simply because the injury was not extensive enough to constitute a taking. While it may be debatable that there is no cause of action for the type of injury suffered, see 4 J. Sackman, Nichols on Eminent Domain § 13.33 (1985), it is not necessary for us to decide that question, as it is clear that any injuries sustained were not sufficient to support an action for inverse condemnation.

The United States Supreme Court has held that when there was total diminution in value, a taking through police power regulations occurred. Pennsylvania Coal Co. v. Mahon, 239 U.S. 394 (1915). However, regulations affecting less than all of the use or all of the value of property, remain to be considered on the particular circumstances of each case. Pennsylvania Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). So in Pennsylvania Central, supra, the governmental regulation restricting the use of air space above the train terminal, where it simply prohibited the owners or others from occupying certain features of that space while allowing them to use gainfully the remainder of the parcel was not sufficient damage to constitute a taking. In similar cases, we have held that a much greater reduction in value or use of the property than is present here would not constitute a regulatory taking. See e.g. Winters v. State, 301 Ark. 127, 782 S.W.2d 566 (1990); J.W. Black Lumber Co. v. Ark Dept. of Pollution Control & Ecology, 290 Ark. 170, 717 S.W.2d 807 (1986).

No reduction in the $350,000 valuation of appellants’ land has been shown, or even alleged, only the lessening of one profitable use of the property. Appellants had been using the land for agricultural purposes, continued to use it in that manner during these legal proceedings, and still had available in the future all other possible uses. Given the facts and circumstances this case when set against the standards previously laid down on damages for inverse condemnation, we must agree with the trial court that any injury sustained here was not sufficient to support appellants’ cause of action.

Affirmed.

Glaze, J., concurs.


author: David Newbern, Justice.

text:
    Jack BANKS v. STATE of Arkansas
    91-84
    813 S.W.2d 257
    Supreme Court of Arkansas
    Opinion delivered July 8, 1991
    [Rehearing denied September 9, 1991.]

      William R. Simpson, Jr., Public Defender, by: Llewellyn J. Marczuk, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

In the Circuit Court the State charged the appellant, Jack Banks, a juvenile, with four offenses: (1) aggravated robbery, (2) attempted capital murder, (3) theft of property valued at less than $200, and (4) fleeing from arrest. Banks was 14 years old at the time the alleged offenses occurred and 15 when the proceedings which are the subject of this appeal occurred. Only one of the offenses charged, aggravated robbery, is listed in Ark. Code Ann. § 9-27-318(b)(1) (Repl.1991) as an offense with respect to which a prosecutor may charge a juvenile in a circuit court as opposed to a juvenile court.

On the basis that all of the offenses were alleged to have occurred in the same episode or course of conduct, the Circuit Court retained jurisdiction of all of the offenses charged but stated that verdict forms would not be given to the jury on the fleeing and theft charges. The Court reserved decision as to whether a verdict form would be submitted to the jury with respect to the attempted capital murder charge. The question presented by Banks’ appeal is whether the offenses should all have been transferred to the Juvenile Court and, if not, whether it was proper for the Circuit Court to retain jurisdiction of any charge not listed in § 9-27-318(b)( 1).

We hold the Circuit Court should have dismissed the charges of offenses not listed in § 9-27-318(b)(1) for lack of jurisdiction. We remand the case for a second hearing on whether the aggravated robbery charge should have been transferred to the Juvenile Court.

The decision of the Circuit Court to retain jurisdiction of all the charges against Banks was made at the conclusion of a hearing on Banks’s motion to transfer all the charges to the Juvenile Court. In response to the Court’s inquiry the prosecutor stated the facts to be proved by the State.

Larry Ball and Eric Coffman were using the pay telephone at a shopping center parking area. They saw two young black men in this same parking lot standing outside a car. While Ball and Coffman were walking back to their car, they were approached by Banks and Andrew Harris. After some conversation, Harris pushed Coffman and ripped a gold chain from Coffman’s neck and struck Coffman in the mouth with his fist. Harris and Banks ran back to their car. Banks pulled a shotgun from the car and brandished it toward Ball and Coffman.

Ball and Coffman drove their car to another parking lot where they found Officer King. They told King what had happened, and King turned on his blue lights and approached the car being driven by Banks in which Harris was a passenger. Banks and Harris sped away, and King gave chase. Harris repeatedly fired a shotgun at King’s police vehicle. The chase ended when Banks lost control and King’s vehicle collided with the car being driven by Banks. King had ducked down in the seat of his car to avoid the shotgun fire at the conclusion of the chase. Banks and Harris were caught by other officers who had arrived at the scene about the time of the crash.

1. Jurisdiction

The jurisdiction of the Juvenile Court is prescribed in Ark. Code Ann. § 9-27-306 (Repl. 1991). The parts of that law relevant to this case provide:

(a) The juvenile court shall have exclusive original jurisdiction of and shall be the sole court for the following proceedings governed by this subchapter:
(1) Proceedings in which a juvenile is alleged to be delinquent or dependent-neglected as defined in this sub-chapter; ....

“Juvenile” is defined in Ark. Code Ann. § 9-27-303 (Repl. 1991) as follows (relevant part only):

“Juvenile” means an individual who:

(A) Is under the age of eighteen (18) years, whether married or single;

“Delinquent juvenile” is defined in Ark. Code Ann. § 9-27-303(11) as:

any juvenile ten (10) years or older who has committed an act other than a traffic offense or game and fish violation which, if such act had been committed by an adult, would subject such adult to prosecution for a felony, misdemeanor, or violation under the applicable criminal laws of this state.

The proceedings in this case were not ones in which a juvenile was “alleged to be delinquent.” Therefore, we cannot say the Juvenile Court had exclusive jurisdiction of the charges solely on the basis of § 9-27-306. Looking further, however, we find Ark. Code Ann. § 9-27-318(b)(l) (Repl. 1991) which provides:

When a case involves a juvenile age fourteen (14) years or fifteen (15) years at the time the alleged delinquent act occurred, the prosecuting attorney has the discretion to file charges in circuit court for an alleged act which constitutes capital murder, murder in the first degree, murder in the second degree, kidnapping in the first degree, aggravated robbery, or rape.

Although not yet codified, Act 903 of 1991 added first degree battery to the list.

Reading §§ 9-27-306 and 9-27-318(b)(1) together, it becomes clear to us that the Juvenile Court has exclusive jurisdiction of all of the offenses charged against a juvenile with the exception of those listed in § 9-27-318(b)(1). Thus, the only offense charged against Banks of which the Circuit Court could properly retain jurisdiction was aggravated robbery.

The authorities cited by the State include Robidoux v. Coker, 383 So.2d 719 (Fla App. 1980). There, the Florida Court of Appeals, considering a juvenile code similar to ours dismissed charges not listed among those for which a juvenile could be tried as an adult. The Florida law permitted trial as an adult of a juvenile charged with an offense punishable by death or life imprisonment. The juvenile was charged with armed robbery, attempted murder, and aggravated assault. Armed robbery was punishable by life imprisonment or death, but attempted murder and aggravated assault were not. In dismissing the latter two charges, the Florida Court of Appeals wrote:

While it might be more convenient to dispose of all three counts involved herein in one judicial proceeding in the adult division, we do not believe the fact that the attempted murder and aggravated assault charges arose out of the same incident as the life felony charge of armed robbery is sufficient to allow adult jurisdiction.

The only other cases cited by the State on this point are from California and North Carolina. Matter of Shanea J., 198 Cal. Rptr. 228 (Cal. App. 2d Dist. 1984); Matter of Ford, 272 S.E. 2d 157 (N.C. App. 1980). The State concedes they are not on point because the juvenile codes in those states are not like the Arkansas Juvenile Code. They provide for concurrent jurisdiction of juvenile and other courts.

In the course of discussing the ruling, the Trial Court referred to Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977), as his basis for keeping jurisdiction of all the charges but permitting the jury to consider only one or two of them. The Britt case stands for the proposition that when the acts charged against a defendant do not constitute a continuing course of conduct they may be charged separately. The case has no application to these facts, as we have no doubt that aggravated robbery, fleeing, and attempted capital murder, as charged, were not part of a continuing offense like non-support and promoting prostitution, the examples given in the Britt case. We also have held that theft and aggravated robbery may both be charged because they are separate crimes, having separate elements, even though they may have been committed at the same time. Higgens v. State, 270 Ark. 19, 603 S.W.2d 401 (1980). We are unaware of any decision of this Court which would require all of these offenses to be tried together, and even if there were such a decision, it would not alter our conclusion on the jurisdiction question.

As the Circuit Court lacks jurisdiction of all of the offenses charged other than aggravated robbery, they must be dismissed.

2. Transfer

Banks asks that his case be transferred to Juvenile Court. Given our conclusion that the attempted capital murder, fleeing, and theft charges must be dismissed, that leaves only the aggravated robbery charge as the subject of Banks’s request. His argument for transfer is three-fold. First, he notes that the Circuit Court insisted that to sever the aggravated robbery from the other charges would leave each of the courts with an incomplete view of the incident. Trying all charges in Juvenile Court would cure that problem. Second, he contends that the Circuit Court had before it his counsel’s “proffer” of evidence that he is an immature first offender who accompanied an older person, age 16, of low mental ability on the escapade, and the State presented no evidence other than the violent nature of the crime charged. Although Banks is alleged to have brandished a weapon, it is not alleged that he did any of the shooting. Third, he argues the trial court retained jurisdiction on the basis that the prosecutor had the right to bring charges in Circuit Court rather than on the basis of the criteria stated in Ark. Code Ann. § 9-27-318(e) (Repl. 1991) as follows:

In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

Subsection (f) provides: “Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.”

At the hearing on Banks’s motion, Banks’s counsel had assembled witnesses to testify with respect to the items addressed in § 9-27-318(e). The Court refused to hear the testimony.

MR. MARCZUK [defense counsel]: Your Honor, I was hoping not to only get counts two, three and four transferred because — He was involved obviously allegedly by the State’s facts in this aggravated robbery. But I was hoping to put on these witnesses today to try to talk you into transferring the whole thing to Juvenile.
THE COURT: I understand what they’re here for. They want me to transfer this to Juvenile because he’s a pretty good kid and he’s a pretty good bet and he hasn’t been in trouble before and all that sort of thing. But that’s not my function. My function is to decide whether or not the prosecutor has the right to try to prosecute them in Circuit Court and to punish them accordingly as adults. That is a discretionary thing and it’s not—It’s not an absolute thing that the Court can deny. And I’m inclined to permit that when the prosecutor feels it’s appropriate in a case, absent some testimony to the contrary. And I will listen to what they have to say. But I’m going to be more inclined to grant it on the basis of lack of substantive proof rather than just what some friends and neighbors and teachers and counselors think would be in the best interest because I see that as just as bias on that part as it is a bias on the prosecutor’s part. They want to punish them as adults and they think that there’s an opportunity to salvage them.
But you’ve got some rather serious criminal conduct alleged here. And, if he is guilty, then I don’t find anything wrong with him being punished as an adult. If he’s not guilty, then you’ve got another matter. If they find him not guilty, then what would be — Suppose I submit only the aggravated robbery to the jury and they find him not guilty of that. And there’s a possibility of that under the facts of this case. Then would you want to transfer the other lesser included or underlying conduct to Juvenile and let him plead guilty to those out there? Of course not. You’re going to say jeopardy’s attached.
So what I see, Lou, is not what’s necessarily good for you nor not what’s necessarily good for the State. I see a responsibility on the part of the Court to take the facts as they may be developed here and see where there’s wrong, if there is wrong, and to get all this young man’s exposure into one ball of wax. If he beats the aggravated robbery, he may walk free. If he doesn’t, he may get some punishment.
So, I don’t want to — I’m not going to tell you you can’t put these people on and have them testify. But I’ve considered everything that you’ve told me that they would testify in this to already.
MR. MARCZUK: Well, I would like to have — Well, if I can paraphrase, they are going to say he’s of borderline mental capabilities.
THE COURT: Now, wait a minute. I’m not going to listen to that. If you want to tell me he’s not guilty by reason of mental defect or disease, then fine. But, now, if you’re — I’ll have to enter an Act Three and we’ll get him examined. On the other hand, if they’re going to say he’s borderline mentally retarded, that is not a defense. And I wouldn’t listen to it on a motion to transfer because Mrs. LaRue should have the opportunity to come in and have an Act Three done and say, “Well, he’s responsible.” And I don’t intend to demean that at all. But you know, Lou, that we’ve got people with I.Q.’s of fifty in the Department of Correction for life. And, you know, that’s a sad and unfortunate fact. I don’t know what his I.Q. is.
But the Court is not — The Court is not impressed with, “Don’t send me to the penitentiary for killing this man because I’ve got an I.Q. that’s dull.” It is not justification that you have a dull I.Q. in murder or rape or robbery or kidnapping or what have you. It’s just not. Total incompetency is. But dullness in not.
I would not hear that without Mrs. LaRue having a chance to rebut it on a motion to transfer to Juvenile. Now, if you want me to hear it, I’ll be glad to. And I’ll be glad to have Dr. White test him or whatever you want to do.
MR. MARCZUK: Well, I understand the position you’re in. But, just reading from the statute here — I know you know the statute and you’ve had a chance to refresh your memory — you’re supposed to make your decision based on the prior history, the repetitive nature of it, the violence of the crime obviously. And, then, after you’ve heard this evidence, if it’s clear and convincing that he should be tried as an adult, then you make your order. That’s why I brought all these folks today.
THE COURT: And I have heard all that testimony. You have told me this is the only time he’s been in trouble. Right?
Okay. I’ve heard that.
You’ve told me that all these counselors and all these people out here think he’s a fine guy. He’s a little bit slow, a little bit dull. But they think that he would be better served if it were transferred to Juvenile. Right?
MR. MARCZUK: Yes, sir.
THE COURT: Okay, I’ve heard that. I’ve denied it. I think that under the facts and the circumstances in this case, if they are as Mrs. LaRue says and if she can prove that, then she has a right and I’m going to permit her to try and convince a jury to send him to the Department of Correction. I don’t know for how much. Maybe only aggravated robbery. But I am at this point willing to let her have the entire events and circumstances developed in order to show what happened out there.

While the Court’s remarks were unclear, it is apparent the decision was made on the basis that the issue being considered was whether there was strong proof of aggravated robbery rather than the statutory criteria for transferring the case to Juvenile Court about which the witnesses might have testified. Some of the Court’s remarks indicate the conclusion that the prosecutor’s discretion in charging the case in Circuit Court is absolute. If the latter was the basis of the Court’s decision, it was erroneous. In Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991), we held that such deference to the discretion of the prosecutor “defeats the purpose of of the Arkansas Juvenile Code which recognizes the need for careful, case-by-case evaluation when juveniles are charged with criminal offenses.”

In Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991), this Court held that a circuit court could decline to transfer a charge of first degree murder to a juvenile court if, after considering the statutory criteria, the court, in its discretion, found clear and convincing evidence that the juvenile should be tried as an adult. The only evidence presented by the State was the charge which evinced the seriousness of the offense alleged and the violent nature of it. The difference between the Walker case and this one is that there the Trial Court listened to the evidence presented by Walker and made the decision on the basis of the statutory criteria. Here, although the court acknowledged the presence of the witnesses and said what he thought they would say, the evidence was not heard. Rather than hearing testimony on the statutory criteria for transfer, the Court made the references quoted above.

We decline to order the case transferred to the Juvenile Court because, given the abuse of discretion standard this Court applied in the Walker case, we cannot say that case clearly should have been transferred. The trial court should, however, have made a decision whether to transfer only after hearing evidence relating to the statutory criteria. We, therefore, remand the case for another hearing.

Reversed and remanded.


author: David Newbern, Justice. Robert L. Brown, Justice, Jack Holt, Jr., Chief Justice,

text:
    Phillip QUALLS v. STATE of Arkansas
    CR 91-52
    812 S.W.2d 681
    Supreme Court of Arkansas
    Opinion delivered July 8, 1991

      Paul J. Teufel, for appellant.

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

An undercover policewoman purchased crystal methamphetamine, a controlled substance, from Phillip Qualls at a residence occupied by Qualls. Officers who subsequently searched Qualls’s room found him in possession of $580, drug paraphernalia, more crystal methamphetamine, and a photograph of Qualls, on a bed in his room where the drugs were found, surrounded by stacks of money with a caption written on the back, “It’s mine, mine, all mine.” Qualls was convicted as an habitual offender of delivery of a controlled substance, possession of a controlled substance with intent to deliver, possession of drug paraphernalia with intent to use, and manufacturing a controlled substance.

Qualls contends the photograph was erroneously admitted into evidence. We hold the Trial Court did not abuse its discretion in finding that it was relevant and that its probative value was not outweighed by its prejudicial effect. Qualls also makes alternative arguments that the trial court failed to rule on an issue as to his competency or failed to find his counsel ineffective at a hearing on his new trial motion conducted pursuant to Ark. R. Crim. P. 36.4 which has since been superseded by Rule 37.1. We hold there was no reason for the Trial Court to have ordered a competency examination and there is no evidence that Qualls’s counsel were ineffective. The judgment is affirmed.

1. The photograph

Qualls moved in limine to exclude the photograph. The motion was denied. The State contends the issue is not preserved for appeal because Qualls’s appendix does not contain a copy of the photograph. We find no need for a copy of the photograph because the testimony in the appendix adequately describes it. See Rules of the Arkansas Supreme Court and Court of Appeals 9(d).

While Qualls argues lack of a “foundation” for admission of the photograph, and the State says he is really arguing lack of “authentication.” Neither was specifically argued to the trial court. We consider the issues to be whether the photograph was relevant and whether the Trial Court erred in not finding that its prejudicial effect outweighed its probative value.

a. Relevancy

Qualls argued to the trial court that the photograph was irrelevant because it had nothing to do with the drug transaction with which he was charged. The State pointed out that Qualls was charged with possession of other quantities of the drug with intent to sell and that the picture was indicative that Qualls was selling it for money. Qualls countered that the money could have come from any source and not necessarily from drug sales.

The Trial Court’s ruling on relevancy is entitled to great deference and will be reversed only if the Court abused its discretion. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990); White v. Clark Equipment Co., 262 Ark. 158, 553 S.W.2d 280 (1977). According to Ark. R. Evid. 401, relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Walker v. State, supra.

There was no abuse of discretion. Qualls did not object to testimony that he was found to have $580 on his person when he was arrested. A picture of him with stacks of money in the room where he conducted at least one drug transaction is indicative that he was selling drugs there and that he intended to sell the quantity of drugs found by the police in that room.

b. Probative value versus prejudice

Arkansas Rule of Evidence 403 gives a court the authority to exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice . . . .” Undoubtedly the photograph was prejudicial, but the question is whether it could have been so unfairly prejudicial as to outweigh its probative value. Again, the decision was within the broad discretion of the Trial Court, Walker v. State, supra; Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988), and we find no abuse.

We find nothing unfair about the possibility that a juror might conclude that a person pictured in a room on a bed in the midst of piles of cash might be conducting a business there generating large amounts of money as illicit businesses tend obviously to do because of the unwillingness of participants to be traced to the transactions through other means of financing them.

While the probative value of the photograph was not great, especially when compared with the other evidence against Qualls, we do find any unfair prejudice to overbalance it.

2. Competency

Neither Qualls nor his counsel raised an issue as to Qualls’s competency until, at a pretrial hearing, Qualls’s counsel announced to the Court that Qualls had complained about his representation, wanted a continuance, and “he would also like to address the Court and request a motion for a mental examination . . . .” The Court enquired of counsel whether there was any “reason or any justification or any indication” that a mental examination would be appropriate. Counsel replied in the negative.

Qualls then addressed the Court and spoke about how he and his counsel had argued about the need for a continuance and for getting his bond reduced. The matter of a mental examination was not mentioned further.

Qualls cites Robertson v. State, 298 Ark. 131, 765 S.W.2d 936 (1989), in support of his contention that it was improper for the court to decline to give a ruling on his competency. There was no call for a ruling. No motion was made, and no defense with respect to competency was raised.

3. Ineffective assistance of counsel

That leaves only the argument that the Court erred in overruling the motion for a new trial pursuant to now superseded Rule 36.4. The contention is that Quail’s counsel was ineffective due to his failure to move for a mental examination or to get a ruling if the colloquy in the pretrial hearing could have been considered a motion.

When the problem between Qualls and his counsel was revealed at the pretrial hearing, the Court appointed another lawyer as co-counsel to assist in Quail’s defense. Yet another lawyer was appointed to represent Qualls with respect to his motion for a new trial.

The motion for a new trial stated no facts showing or tending to show Qualls was entitled to a new trial. The motion was thus defective at the outset. Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989). Nothing was mentioned about the failure to grant a mental examination. The subject came up at the post-trial hearing on the motion. Qualls testified he had told his original lawyer that if he were sent to prison he would kill himself “down there”. That was the only evidence even remotely suggestive that Qualls might not have been competent to stand trial or incapable of following the law at the time the offenses were committed.

We find no basis for holding that the new trial motion should have been granted due to ineffective assistance of counsel. Even if we were to hold that counsel’s performance was deficient in some way, we could find no basis for holding that Qualls was prejudiced. See Strickland v. Washington, 466 U.S. 668 (1984). Affirmed.

Hayes and Brown, JJ., concur.

Holt, C.J., dissents.

Robert L. Brown, Justice,

concurring. I am unwilling to reverse the conviction in this case based on a verbal description of the photograph at issue. Had the photograph been part of the record before us and had it depicted what is described by the appellant, I would doubt its relevancy. Not having the photograph before us, however, places us in the posture of speculating, at least to some extent, as to its content. I therefore, concur in the result.

Hays, J., joins.

Jack Holt, Jr., Chief Justice,

dissenting. I do not agree with the majority that the photograph of Qualls in a room on a bed in the midst of piles of cash was relevant under A.R.E. Rule 402. The money could have come from any number of other sources. In any event, the question of relevancy should not be resolved by imagination or guesswork. The picture is simply not relevant to the facts of this case.

In addition, acceptance of this picture into evidence violates A.R.E. Rule 403 for its probative value does not outweigh the danger of unfair prejudice.

The majority acknowledges that “undoubtedly the photograph was prejudicial”; however, they explain away the prejudice by stating they find nothing unfair about the fact that a juror might conclude, by examination of the picture, that Qualls was conducting an illicit business.

My concern is not with the guilt of Qualls, as there is overwhelming evidence of his guilt of the crime charged. I am troubled as to what effect the picture of Qualls surrounded by piles of money had on the jury in regard to the assessment of his punishment.

Under our criminal justice system, we call upon the jury to make findings of guilt and to assess punishment in the same proceeding, Ark. Code Ann. § 5-4-103 (1987), unless there is an exception which calls for bifurcation. See e.g., Ark. Code Ann. § 5-4-602 (1987) (dealing with capital felony murder cases). In evaluating the question of relevancy and probative value of the introduction of the picture into evidence, we must consider not only what effect the picture had upon the jury’s finding of guilt or innocence, but what effect, if any, it may have had upon the assessment of a forty-year sentence as punishment. Since the prejudicial effects of admitting this picture into evidence could well have affected sentence, I would either reverse and remand or order his sentence reduced to the minimum authorized by law. See White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989).


author: Tom Glaze, Associate, Justice.

text:
    STEWART TITLE GUARANTY v. Kenton TREAT
    91-134
    810 S.W.2d 953
    Supreme Court of Arkansas
    Opinion delivered July 8, 1991

      Marian M. McCullan and Roy E. Danuser, for appellant.

      Kerry D. Chism and Donald Joe Adams, for appellee.
   Tom Glaze, Associate, Justice.

This is a title insurance case involving an erroneous property description contained in the mortgagee’s insurance policy written by appellant Stewart Title Guaranty Company (Stewart Title). The title insurance policy, in the amount of $316,200, was issued on June 28,1983, to Twin Lakes Federal Credit Union (Twin Lakes), the mortgagee of 400 acres owned by Chris and Rosalee Wade. After a couple of interim transactions, the note and mortgage was purchased by appellee, Kenton Treat. The property description contained in the mortgage and the title insurance policy erroneously placed 32.5 acres in the wrong quarter section. Instead of SE */», SW the description read SW '/i, SE ‘/4. Because of this erroneous property description, 32.5 acres were included in the mortgage and title insurance policy that were not owned by the Wades.

On November 13,1987, when the Wades became unable to make their payments, Treat sued on the note and mortgage and obtained a judgment in excess of $400,000. Treat received $100,000 from the sale of the property at a foreclosure sale on June 15,1989. The Wades are now in bankruptcy. On February 22, 1990, Treat filed suit against Stewart Title seeking recovery under his title insurance policy. In this suit, Treat alleged that, on March 28, 1988, he had notified Stewart Title of the erroneous property description, but no action was taken to correct the problem. After two separate hearings, the trial judge ruled that Stewart Title was liable under the insurance policy and awarded a judgement of $21,125 plus costs. Stewart Title appeals this judgment arguing that there is insufficient evidence to support the court’s ruling on liability and the amount of damages. We find no error, and therefore affirm.

A representative from Stewart Title and its attorneys began the first hearing by offering as a settlement, a quitclaim deed to the 32.5 acres erroneously left out of the title insurance policy. Stewart Title stated that by offering this quitclaim deed, the insurance company would be relieved of liability. Treat refused this offer for the following reasons: 1) Stewart Title could not reform the insurance contract now after knowing about the error for two and one-half years; and 2) the Wades were in bankruptcy, and Stewart Title could not obtain a quit-claim deed for the property without going through bankruptcy court. Because of the comments made by Stewart Title’s attorneys, Treat asserted Stewart Title had stipulated to its liability. Thus, Treat offered nothing further to prove his case at the first hearing. Stewart Title contends that it did not stipulate to liability and that Treat waived his right to present evidence on this issue.

From a review of the proceedings below, we call attention to the following comments made by Stewart Title’s attorneys:

(T)his all came about due to a scrivener’s error----It was the intent to pledge this property for that loan. It’s the intent of the title policy to guarantee that if the loan is forfeited, you may acquire title by foreclosure.

After these comments, Treat stated Stewart Title had admitted liability and therefore the only issue remaining was whether or not Stewart Title had to pay money damages. The trial judge then allowed Treat to have one of his witnesses testify on the issue of damages. At the end of the hearing, the trial judge made the following statement:

Gentlemen, just so it’s clear on the record, there’s no dispute here and the reason the plaintiff has not presented testimony is, there’s no dispute that there was a real estate mortgage given to Mr. Wade to Twin Lakes Federal Credit Union. . . .There was an assignment of that mortgage to Mr. Treat. Subsequently, Mr. Treat had to foreclose that mortgage. That there was a scrivener’s error in the real estate mortgage misdescribing a portion of the land sought to be covered by the real estate mortgage.

The record reflects that both parties agreed to the correctness of this statement.

We read the court’s summation above as showing that the trial judge believed that the parties had stipulated to the issue of liability. And, after review of Stewart Title’s comments below, we agree with Treat’s and the court’s conclusion that Stewart Title agreed to facts reflecting its liability in this case. We also note that Stewart Title took no action to counter Treat’s and the court’s belief. Thus, it would be grossly unjust for us to allow Stewart Title to prevail in its argument that Treat erred in failing to present further evidence on the liability issue.

We now address the damage issue. Both parties agree that in order to recover under his insurance policy, Treat was required to show a loss. The record shows that because of an erroneous property description that included 32.5 acres of someone else’s property, the Wades retained ownership of their 32.5 acres free of encumbrances. In other words, when Treat foreclosed after the Wades defaulted on their note, Treat could not foreclose on 32.5 acres of the 400 acres covered by the title insurance because those 32.5 acres belonged to someone else, not the Wades. In proving his damages, Treat presented testimony which showed the value of the 32.5 acres erroneously included in the policy to be $27,000. Another witness testified that the 32.5 acres owned by Wade and the acreage erroneously included in the policy were worth approximately the same value—$500 per acre.

For the first time, Stewart Title argues on appeal that Treat did not prove the proper loss for a mortgage title insurance policy or the proper measure of damages. Stewart Title made no objection to the value testimony presented below. Instead, Stewart Title acknowledged Treat had sustained a loss but attempted to remedy Treat’s loss by the Wades giving Treat a quitclaim deed to their 32.5 acres, which would be subject to the bankruptcy court’s abandonment of that acreage. Treat rejected this idea, and Stewart Title offered no further argument regarding Treat’s loss, nor did it question the measure of damages utilized or the damage evidence presented in the trial court below. As we have stated numerous times, this court will not consider arguments not presented to the trial court. See, e.g., Crowder v. Crowder, 303 Ark. 562, 798 S.W.2d 425 (1990).

Even if we could address Stewart Title’s argument, from our reading of Treat’s title insurance policy, it is clear that the policy covers, among other things, the loss or damage sustained or incurred by the insured by reason of “title to the estate or interest described in Schedule A being vested otherwise than as stated therein.” Schedule A reflects that the estate or interest referred to at the date of the policy is vested in Chris and Rosalee Wade. As previously stated, the 32.5 acres described in the insurance policy were not vested in the Wades. Thus, under the terms of Stewart Title’s own policy, Treat sustained a loss for which he is entitled to recovery.

For the reasons stated above, we affirm.

       We note that Stewart Title is represented by different attorneys on appeal.


text:
    IN RE: William T. LEWIS, Jr. Bar ID # 64024
    91-144
    810 S.W.2d 45
    Supreme Court of Arkansas
    Delivered July 8, 1991

      James A, Neal, petitioner.
    No response.
   Per Curiam.

The Committee on Professional Conduct unanimously recommends the disbarment of William Theodore Lewis, Jr., Arkansas Bar ID No. 64024, 1238 West Governor, Springfield, Illinois 62704, pursuant to a judgment of the Supreme Court of Illinois, dated October 10, 1990, Docket No. 69542. A copy of the Petition has been forwarded to Mr. Lewis by the Clerk of the Court under cover letter of May 29, 1991. No response has been filed.

Having before us a certified copy of the judgment of the Supreme Court of Illinois ordering the disbarment of William Theodore Lewis, Jr., and cognizant of the recommendation of the Committee and of Rule 7F, DISBARMENT RECIPROCAL, of the Rules Regulating Professional Conduct of Attorneys at Law, providing that upon presentation of a certified order of a corresponding disciplinary authority of another jurisdiction evidencing disbarment, the Committee “by summary proceeding shall cause a like sanction,” and having given notice of the filing of this petition, we find that William Theodore Lewis, Jr. should be, and he is hereby, disbarred from the practice of law in the State of Arkansas.

IT IS SO ORDERED.