text:
    James LEGGINS v. STATE of Arkansas
    CR 79-178
    590 S.W. 2d 22
    Opinion delivered December 3, 1979
    (In Banc)

      John W. Achor, Public Defender, by: Sandra Beavers, Deputy Public Defender, for appellant.

      Steve Clark, Atty. .Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

One James Leggins was convicted in the Pulaski County Circuit Court of two counts of aggravated robbery. The jury found he was an habitual criminal, having two prior convictions, and he was sentenced to 30 years imprisonment on each count, the terms to be served consecutively.

The sole argument of error on appeal is that the trial court erred in permitting evidence of a prior conviction of one JAMES LIGION to be submitted to the jury as a prior conviction of this defendant who was named JAMES LEGGINS in the information.

We agree this was error which requires us to reverse the judgment.

A Mississippi County conviction, submitted to the jury as a prior conviction, read JAMES LEGGINS. To this conviction there was no objection. A Crittenden County Circuit Court conviction read JAMES LIGION. The only evidence of this conviction was simply a certified copy of the judgment and an order of commitment offered by the State with no explanation. The judge permitted it to go to the jury as evidence of a previous conviction of the appellant. There was no reference to an alias in any of the documents. Leggins’ counsel objected to the Crittenden County conviction being admitted but the trial court permitted it noting that the variation in spelling was a matter of weight to be attached to the document and not one affecting its admissibility.

The prosecuting attorney argued to the jury that the two documents of previous convictions were uncontradicted, introduced in good faith by the State, allowed as evidence by the trial court as convictions of Leggins; none of this was rebutted by any evidence from the defendant. .

On appeal the State argues the jury had other evidence which could justify their finding that JAMES LEGGINS and JAMES LIGION were the same person.

A waiver of rights form was signed by this defendant as JAMES LEGGION. So was his statement. These documents were introduced during the trial of the case but were not referred to during the sentence phase of the trial. However, we have to assume that the jury had the benefit of this evidence when it found that the appellant had two previous convictions.

Was the jury’s finding, that this defendant, charged as JAMES LEGGINS, is the same person as one convicted in Crittenden County Circuit Court, charged as JAMES LIG-ION, supported by substantial evidence? We think not.

Proof of previous convictions is governed by Ark. Stat. Ann. § 41-1003 et seq. (Repl. 1977). The jury, or the trial judge sitting as a jury, hears evidence on this issue after the trial. A previous conviction must be proved by “ . . . any evidence that satisfies the trier of fact beyond a reasonable doubt . . . . ” Ark. Stat. Ann. § 41-1003.

The following are sufficient to support such a finding:

(1) The jury shall first hear all evidence relevant to the felony with which defendant is currently charged and shall retire to reach a verdict of guilty or innocence on this charge.
(2) If the defendant is found guilty of the felony, the same jury shall sit again and hear evidence of the defendant’s previous felony convictions or previous findings of the defendant’s guilt of felonies. Defendant shall have the right to hear and controvert such evidence and to offer evidence in his support.
(3) The jury shall retire again, and if it finds that the defendant has previously been convicted or found guilty of two [2] or more felonies, the jury shall consider the previous convictions or findings of guilt in determining the sentence to be imposed for the felony of which the defendant currently stands convicted. Ark. Stat. Ann. § 41-1005.

A defendant may controvert such evidence and offer evidence to rebut the State’s. Ark. Stat. Ann. § 41-1005. However, the burden remains on the State at all times to prove such convictions beyond a reasonable doubt.

The prosecuting attorney offered no evidence that this defendant was JAMES LIGION. He referred to the State’s good faith, the judge’s action in permitting the document to be admitted and the fact that the defendant could prove it was not he, if that was the case.

We cannot stretch LEGGINS to be the same as LIG-ION. Nor can we stretch LEGGION to be LIGION. The doctrine of idem sonans, which is that absolute accuracy in spelling names is not required if the names, though spelled differently, sound practically identical, cannot work to support the jury’s findings.

Some cases applying that doctrine support our conclusion. In Woods v. State, 123 Ark. 111, 184 S.W. 409 (1916), we held “Woods” was not the same as “Wood”, commenting that the “ s” at the end of a name is not silent and that the two names were not identical under the doctrine of idem sonans. In another case, “Jeffery” and “Jeffries” were not idem sonans. Marshall v. Jefferies, Fed. Cas. No. 9, 128(a) Hemp. 299 (Super. Ark. 1836).

On the other hand, “Vaughn” and “Vaughan” were held to be identical. Goddard v. State, 100 Ark. 149, 139 S.W. 1121 (1911). “Forshee” and “Foshee” were held as idem sonans. Taylor v. State, 72 Ark. 613, 82 S.W. 493 (1904).

The State argues on appeal that LEGGINS, or whatever his name is, signed an affidavit of indigency as LIGGION, but the State concedes this evidence was not presented to the jury.

We have commented on the failure of a defendant to rebut the State’s proof, but those cases involved very minor variations in spelling. In Higgins v. State, 235 Ark. 153, 357 S.W. 2d 499 (1962), Lawrence John Higgins complained that the FBI document of previous convictions of one “Lawrence Higgins, also known as Lawrence John Higgins,” was erroneously submitted as evidence of a prior conviction. We had no problem in finding that Higgins’ argument was without merit. In Henson v. State, 248 Ark. 992, 455 S.W. 2d 101 (1970), Charles Eugene Henson was the named defendant. The previous conviction was of one “Charles Haggard, A/K/A Charles Henson.” We also found an objection to this evidence to be without merit. In both the Higgins and Hen son cases we commented that the defendant could have easily offered some proof to support the claim of mistake. However, in the Higgins case we adopted the rule that if the State offered evidence of a previous conviction of one of the same name, then a prima facie case was made of a previous conviction. That is sound law substantially incorporated in Ark. Stat. Ann. § 41-1003. But in both of these cases the name was the same or substantially the same. That is not true in this case.

The State charged Leggins as the defendant in this case and without any other evidence offered, the jury found a conviction of a man named Ligion to be the same person. The names are not the same, are not pronounced the same and the jury would have to presume that the people were the same. There is no substantial evidence to support this finding.

Undoubtedly our decision would be different if the affidavit of indigency had been submitted to the jury because there is not that much difference between LIGGION, as the defendant signed his name in that form, and LIGION, as the Crittenden County Circuit Court conviction read.

Because this error relates to a previous conviction, we treat the matter as we did in McConahay v. State, 257 Ark. 328, 516 S.W. 2d 887 (1974). The sentence is reduced to 10 years imprisonment. If the State, through the Attorney General, desires to accept the reduction within seventeen calendar days, the judgment is affirmed as modified. Otherwise, the judgment is reversed and remanded.

Affirmed as modified.

Harris, C.J., not participating.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    Dr. Jack GIBBINS v. Porter HANCOCK et al
    79-252
    590 S.W. 2d 280
    Opinion delivered December 3, 1979
    (In Banc)

      Henry & Duckett, by: Gerry L. Brewer, for appellant.

      Friday, Eldredge & Clark, by: Phillip Malcom, James M. Saxton and William T. Baxter, for appellees.
   John I. Purtle, Justice.

The Pulaski Chancery Court denied appellant’s petition to contest a will on the grounds it was not filed within six months from the date of notice to probate the will. Appellant contends the five-year time limit applies because actual notice was not given as required by statute.

We are requested to rule that in the absence of strict compliance with the notice of probate statute the five-year statutory period for contesting the will applies. We hold that substantial compliance only is required and affirm the trial court’s holding that the appellant had actual and constructive notice of probate of the will. We also disagree with appellant’s contention the trial court erred in ruling on the statute of limitations question in a summary manner after a hearing on the question of limitations.

Decedent’s will was admitted to probate on December 19, 1975, without notice or hearing. However, the executor prepared and signed the standard notice and mailed copies to the probate clerk along with notice to be mailed to petitioner, the only brother of decedent, with a request for the clerk to mail notice to the interested parties. The envelope to the appellant had been addressed and a registered return receipt attached to the outside of the envelope. The clerk’s return address was placed on the return receipt. December 22, 1975, the attorney for the executor mailed a letter and copies of all the papers, including notice of publication, to appellant. This letter was not returned to the attorney although his return address was on the envelope. The first notice of publication ran on December 23, 1975. December 26, 1975, appellant’s wife wrote the executor’s attorney a letter which stated she hoped all questions had been answered as she did not know what her husband had done with the letter from the attorney.

On January 8, 1976, appellant’s attorney filed a special request with the probate clerk asking for notice on all proceedings in the estate. February 9, 1976, the executor’s attorney hand delivered a letter and copies of all prior proceedings, including the notice of probate of the will, to the appellant’s attorney. The request for notice of all proceedings designated appellant’s attorney as the person to receive all such information. In the meantime, the return receipt which had been attached to the letter of December 22, 1975, was returned to the probate clerk without a signature of the addressee as requested. Subsequently, at the hearing on the petition to contest the will, a postal employee testified it was likely that the machine at the post office detached the return receipt from the letter and the receipt was mailed back to the sender. In this case the letter, from which the request had been detached, would customarily be delivered by ordinary mail. In any event, the appellant (addressee) denied having received the letter of December 22, 1975. There is no direct proof that it was received by him. However, information requested in the letter was furnished. The probate of the will continued and final notices were sent to the interested parties, including appellant. No one appeared or objected to the final hearing and the estate was closed on April 4, 1976. The petition to contest the will was filed by appellant on November 20,1978. It was denied by the court on April 4,1979, for the reason that appellant had received actual and constructive notice of the probate of the will.

It is admitted by appellant he had actual notice as well as constructive notice of the will being probated. However, he insists there should have been personal notice as set out in Ark. Stat. Ann. § 62-2012 (Repl. 1971). This statute reads in part as follows:

Notice. — a. When Notice To Be Given. Notice to interested persons need be given only when and as specifically provided for in this Code or as ordered by the court. When no notice is required by this Code the court, by rule or by order in a particular case, may require such notice as it deems desirable.
b. Kinds Of Notice Required. Unless waived and except as otherwise provided by law, and subject to rule of the court or order of the court in a particular case specifying which of the following types of service shall be employed, notices required by this Code may be served either:
(1) By delivering a copy personally to a person, if a natural person, and if a corporation or a partnerhip by delivering a copy to an individual upon whom civil process may be legally served in behalf of the corporation or partnership, at least ten (10) days prior to the date set for the hearing; or
(2) By leaving a copy at the usual place of abode of the person being served with some person over the age of fifteen (15) years, who is a member of his family, said notice to be served by an officer authorized to serve process in civil actions, at least ten (10) days prior to the date set for the hearing; or
(3) By registered mail, requesting a return receipt signed by addressee only, addressed to the person to be served located in the United States at his address stated in the petition for the hearing, to be posted by depositing in any United States post office in this state at least fifteen (15) days prior to the date set for the hearing; or
(4) By publishing once a week for two (2) consecutive weeks in some newspaper published and having a general circulation in the county, the first day of publication to be at least fifteen (15) days prior to the date set for the hearing, and, in addition, when service by publication only is employed, all persons whose names and addresses appear in the petition shall be served by ordinary mail bearing on the envelope the return address of the clerk, in the same time and manner as provided in subsection (3) with respect to notice by registered mail, except that no registration shall be required; or
(5) By any combination of two or more of the above.
c. By Whom Prepared, Signed and Served. Except when by statute or by order of the court otherwise expressly provided, a notice in a probate proceeding shall be in writing, or print, prepared by or by procurement of the party upon whom rests the burden of giving the notice and signed by the clerk. If service is to be by mail the person preparing the notice shall deliver the same to the clerk properly prepared for the post and the clerk shall be required only to post the same. Personal service may be made in any part of this state and, except as provided by subsection b (2) hereof, may be made by any person not an incompetent.
‡ ■i’ ^
e. Service On Attorney. If there be an attorney of record for a party in a proceeding or matter pending in the court, all notices required to be served on the party in such proceeding or matter shall be served on the attorney and such service shall be in lieu of service upon the party for whom the attorney appears.
* * *

Ark. Stat. Ann. § 62-2013 (Repl. 1971) provides notice may be waived by a person submitting to the jurisdiction of the court. We believe appellant voluntarily submitted to the jurisdiction of the court on January 8, 1976, by requesting in writing that notice by ordinary mail of any petition, motion, or other filing of any kind, be sent to his attorney. All past and future notices, including notice of publication, were furnished to appellant’s attorney who stated at the hearing on the petition that notice was not an issue. Appellant’s attorney stated he was aware of the six-month time limit and discussed it with appellant. In fact, the attorney had a memorandum prepared for appellant regarding the possible contest of the will. Ark. Stat. Ann. § 62-2114 (Repl. 1971) provides a contest must be commenced within six months if the interested party has been notified as required by Ark. Stat. Ann. § 62-2111 (Repl. 1971). This required notice addresses itself to the procedure required by § 62-2012 which is set out above. If notice has not been afforded as set out above a contest is timely if filed within five years after admission of the will to probate.

We believe the court is supported by a preponderance of the evidence in finding that actual notice was received by appellant. No doubt the letter of December 22, 1975, was mailed as evidenced by the fact that the post office returned the green receipt which was returned to the probate clerk plus the appellant’s wife’s statement that the letter had been misplaced. Also, information requested in the letter was submitted to the executor’s attorney. We realize that appellant and his wife both denied receiving the letter. Even if the letter were not received, the appointment of an attorney of record to receive all notices and proceedings constituted a waiver or submission to jurisdiction of the court in this case.

The burden of proof in this instance was with appellant as to the allegations in the petition to contest the will. Ross v. Edwards, 231 Ark. 902, 333 S.W. 2d 487 (1960); Leister v. Chitwood, 216 Ark. 418, 225 S.W. 2d 936 (1950). However, the test in a will contest is whether there has been a substantial compliance with the statutes regarding probate of the will. Thomason v. Ledgerwood, 211 Ark. 327, 201 S.W. 2d 14 (1947). (This case was prior to the probate code.) Merritt v. Rollins, 231 Ark. 384, 329 S.W. 2d 544 (1959); and Edwards v. Brimm, 236 Ark. 588, 367 S.W. 2d 433 (1963). To hold in this case that appellant could contest the will would indeed place form above substance. We do not imply that the procedures set out in the statutes are not to be followed; we hold rather that such procedures have been followed in this case substantially. It is obvious appellant had full knowledge of all proceedings in this matter and has not been misled or had advantage taken of him. Admitted knowledge of the proceedings is a matter to be considered by the court. Metcalfe v. Nichol, 225 Ark. 574, 283 S.W. 2d 853 (1955). Appellant apparently changed his mind after he knowingly let the statute run on contesting the will.

We know of no rule or law which prohibits the probate judge from considering an affirmative defense which is dis-positive of the case without first hearing the merits of the allegations of the petition. It appears to have been the least expensive and less troublesome method of disposing of this contest. There is no allegation that appellant was deprived of the right or opportunity to present all available evidence on the question of whether his petition was barred. All evidence relating to the contest of the will would only have burdened the record. We are not unaware of the allegations in the petition specifically alleging that notice was not given and the five-year statute controlled. However, these issues were heard and determined adversely to the appellant. It would have served no useful purpose to hear this evidence twice. The mental and physical condition of the decedent has no bearing on the statute of limitations to be applied in this case.

Affirmed.

Harris, C.J., and Hickman, J., not participating.


author: John I. Purtle, Justice. John A. Fogleman, Justice,

text:
    David R. PRINE v. STATE of Arkansas
    CR 79-173
    590 S.W. 2d 25
    Opinion delivered December 3, 1979
    (In Banc)

      Alfred J. Holland, by: Michael E. Todd, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

The trial court affirmed the judgment of the municipal court when appellant failed to appear on the date his case was called in circuit court. The court also denied his motion to set aside its order affirming the municipal court judgment when appellant appeared at a later hour on the same date. This appeal is from rejection of his motion to set aside the affirmance of conviction in municipal court.

Appellant argues on appeal that the court erred by holding appellant had proper notice of the time and date for appearance in violation of Ark. Stat. Ann. § 22-311 (Repl. 1962) and the due process clause of the 14th Amendment to the Constitution of the United States; that it was error to affirm the municipal court judgment at a date prior to the cause being set for trial; that Ark. Stat. Ann. § 44-506 (Repl. 1977) is unconstitutional as applied; that it was error to fail to set aside the affirmance when appellant appeared before the court prior to adjournment on the date set for calling the docket; and that the court erred in refusing to allow appellant’s attorney to plead for him on the misdemeanor.

All grounds argued for reversal essentially boil down to whether or not appellant had proper notice of the time and place he should appear and whether or not the court abused its discretion in affirming the judgment of the municipal court. In reviewing the record and the law in this case we agree appellant did not have proper notice.

Appellant was convicted of a misdemeanor in the Paragould Municipal Court on April 23, 1979. Notice of appeal was given and lodged in the Circuit Court of Greene County on May 7, 1979. The conditions of the appeal bond were, among other things, that appellant appear in the Greene County Circuit Court at its next criminal term. The next day of the circuit court met on May 14, 1979. A bench warrant was issued for appellant on May 9,1979. Apparently the purpose of the warrant was to give appellant notice of his need to appear in court May 14. However, the warrant was never served on appellant. Appellant’s attorney appeared on May 14 and announced ready for trial when the case was called. This date was used to sound the docket of all misdemeanor appeals and set them for trial at a time certain. The trial court refused to allow appellant’s attorney to plead for him and immediately affirmed the judgment of the lower court when it was determined appellant was not present. Shortly thereafter, appellant, who lived in Jonesboro, was notified and appeared in court at 11:00 a.m., May 14, 1979. Relying upon failure to receive notice and various statutes, appellant moved to set aside the action affirming the municipal court judgment. The court overruled his motion and appellant appealed to this Court.

Ark. Stat. Ann. § 22-311 (Repl. 1962) states as follows:

When any circuit court is duly convened for a regular term, the same shall remain open for all criminal, civil, or special proceedings until its next regular term, and may be in session at any time the judge thereof may deem necessary; but no such session shall interfere with any other court to be held by the same judge. If the time has not been fixed by the court, or unless in such cases they are required by law to take notice, all interested parties, together with their attorneys, shall receive notice from the clerk of the court of any proceeding affecting their rights, and shall be given time to prepare to meet such proceedings, where the defendant or respondent has answered or otherwise plead.

It is not disputed appellant did not receive actual notice of the time and place he should appear. Therefore, unless he is required by law to take notice of the date and time the Greene County Circuit Court meets, he would have been under no obligation to report on May 14, 1979, unless ordered to do so by the court.

Ark. Stat. Ann. § 44-507 (Repl. 1977) provides if an appellant fails to appear in circuit court, on appeal from municipal court, when the case is set for trial judgment may be affirmed, unless good cause be shown to the contrary. The circuit court admittedly did not send out notices to misdemeanor appellants. The bench warrant which was issued never was served upon appellant and it was the instrument intended to give appellant notice to appear May 14. Neither does the record indicate notice was sent to appellant’s attorney. The testimony reflects appellant received notice at 10:00 a.m., May 14, to appear in Greene County Circuit Court on that same date. He immediately traveled from Jonesboro to Paragould and arrived in the courtroom about 11:00 a.m. Upon his arrival he was notified that his conviction in the lower court had been affirmed.

The state recites the affidavit for appeal, issued on April 23, 1979, as notice to appellant. The affidavit simply stated appellant would appear in circuit court on the first day of the next regular term of Greene County Circuit Court. Appellant appeared in Greene County Circuit Court on May 14, 1979.

No time for convening court was given in the affidavit. The state admits prejudicial error exists which requires reversal.

Ark. Stat. Ann. § 43-2102 (Repl. 1977) provides if an accused be charged with a misdemeanor the trial may be had, at the discretion of the court, in the absence of an accused. Certainly, if atrial may be had in the absence of an accused, a pléa may likewise be accepted in his absence. Although there is no instrument in the record indicating May 14 was to be used solely for the purpose of sounding the misdemeanor docket, such statement by appellant is undisputed. It is not a violation of the law to allow an attorney to appear and plead for his client.

Ark. Stat. Ann. § 22-311 (Repl. 1962) requires notice shall be given by the clerk of the court in each proceeding affecting a defendant’s right, in time to prepare to meet such proceedings. The clerk did not give that notice in this case. The United States Supreme Court stated in Goss v. Lopez, 419 U.S. 565 (1975):

. . . there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.

So far as appellant was concerned he had no knowledge the case had been set for trial. He appeared at 11:00 a. m. on May 14, 1979, after having been notified by telephone he should be present on that date. His affidavit and bond, filed in the municipal court, stated he would appear at the next term of the circuit court. The Greene County Circuit Court, Criminal Division, did meet at 9:30 a.m. on May 14, 1979. However, Act 505 of 1965 states that the Criminal Division of the Greene County Circuit Court shall convene on the third Monday in May. According to our calculations, this would be May 21, 1979. Therefore, it was error for the court to affirm the municipal court judgment prior to the time appellant was supposed to appear. To deny his right to request a jury trial prior to the first day of court would violate due process of law.

Reversed and remanded.

Harris, C.J., not participating.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur solely because it seems clear to me that the first day of the next term of the Circuit Court of Greene County, after the entry of the Municipal Court judgment, was May 21. The affidavit and bond in this case clearly indicated an appearance at the next term of that court. There is nothing in the record to indicate that any other time had been fixed by the trial court in any manner that required all litigants to take notice. Otherwise, I agree with the trial judge that all litigants, particularly those who invoked the jurisdiction of the court, are charged with notice of the convening of its terms and of times fixed in advance for the holding of said court without any notice being served on them, and that there are no due process requirements of notice of such dates.

The very reason for the constitutional provision that the circuit court be held at the times prescribed by law (Art. 7, § 12, Constitution of Arkansas) and the legislation putting the provision into execution [Ark. Stat. Ann. § 22-310 (Repl. 1962 and Supp. 1979)] is to establish a fixed time of which all persons are required to take notice. The basic rule in this regard is stated at p. 230, 21 CJS, Courts, § 148, thus:

Where the time and place of holding a term or session of court have been properly fixed and appointed, it is the duty of parties having business at such term or session to take notice thereof, or to suffer the penalty, whatever that may happen to be, of their ignorance.***

This rule has special application to one who has invoked the jurisdiction of the court. In Berry v. Sims, 195 Ark. 326, 112 S.W. 2d 25, we said:

The appellant wholly misconceives the functions of the court, his own duties and obligations in regard to it in the preparation of his case when he has once invoked its jurisdiction. When he shall have set in motion the machinery of the courts, he must take notice of the convenings and adjournments thereof and no obligation in law rests upon the defendant or anyone else to apprise the plaintiff of the fact that courts will convene according to law at regular terms or at special or adjourned sessions.
It is true, courts may not serve the purpose of entrapping the unwary at special or adjourned sessions. The court may cause notice to be given where it is deemed necessary to serve the purposes of justice, but plaintiffs, when once they invoke the jurisdiction of the court, must take notice of the regular or adjourned sessions thereof.

Act 202 of 1943, digested as Ark. Stat. Ann. § 22-311 (Repl. 1962) was never intended to have the effect of relieving parties to proceedings of the requirement that they take notice of the convening of a term of court or of a day of that term to which the session is recessed or adjourned. That act was merely an application of the provisions of Initiated Act No. 3, adopted by the people on November 6, 1936, which made the courts open at all times for criminal proceedings. See § 31, Act 3 of 1936; Leflar, The Criminal Procedure Reforms of 1936 Twenty Years After, 11 Ark. L. Rev. 117, 135. This statute only requires notice when the interested parties are not otherwise required by law to take notice and when the time for a session has not been previously fixed by the court by proper order.

I am not in complete agreement with the majority’s statement about the appearance of one such as appellant by his attorney, where, as in this case, imprisonment could be a part of the punishment. It is purely a matter of discretion with the court whether the defendant on a misdemeanor charge shall be permitted to answer the charge by his attorney, without personally appearing in court himself, and the exercise of that discretion cannot be reviewed by this court on appeal, except for abuse. Warren v. State, 19 Ark. 214; Bridges v. State, 38 Ark. 510; Owen v. State, 38 Ark. 512. See also, Sweeden v. State, 19 Ark. 205; Henderson v. Town of Murfreesboro, 119 Ark. 603, 178 S.W. 912; Martin v. State, 40 Ark. 364.


text:
    Donald FRANKLIN, et ux v. STATE of Arkansas et al
    79-191
    590 S.W. 2d 28
    Opinion delivered December 3, 1979
    (In Banc)

      Gibson & Gibson, P.A., by: R. Bynum Gibson, Jr., for appellants.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellees.
   John I. Purtle, Justice.

The prosecuting attorney of the tenth judicial district filed a petition for abatement of a nuisance, pursuant to Act 118 of 1937 (Ark. Stat. Ann. §§ 34-111 — 119 [Repl. 1962]). The alleged nuisance was a dance hall owned and operated by appellants. On April 30, 1979, the court ordered the dance hall temporarily padlocked without a hearing and without notice to appellants. The order met the requirements of Ark. Stat. Ann. § 34-115 (Repl. 1962). A hearing was held on May 5, 1979, and the order padlocking the property was continued in force pending a final hearing. The trial court upheld the constitutionality of Act 118 of 1937.

The facts are undisputed in this case. Without a hearing or notice to appellants, the prosecuting attorney procured the order from the circuit court padlocking appellants’ property on the ground that it was a public nuisance. The only notice received by appellants was the temporary order padlocking their premises and it was nailed to the door of their business in their absence. Appellants applied to this Court for a temporary writ of prohibition which we denied without prejudice, pending the hearing to be held the same day on the order padlocking the premises. At the hearing on May 5, 1979, the trial court determined Act 118 of 1937 was constitutional and extended the order padlocking the property until the permanent hearing on June 7,1979. Appellants returned to this Court for a temporary writ of prohibition and we granted temporary relief and ordered the matter briefed pursuant to our Rule 16.

Ark. Stat. Ann. § 34-111 (Repl. 1962) states:

“Dancehall” defined. — Term “dancehall” as used in this act (§§ 34-111 — 34-119) is hereby construed, to mean any building, premise, pavilion, or place of business wherein dancing is permitted or conducted, or engaged in, by the public in general, either for profit or not.

Ark. Stat. Ann. § 34-112 (Repl. 1962) states:

Dance hall as nuisance. — The operation of a dance hall in which, or around which, public disturbances, the unlawful drinking of intoxicating liquors, quarrels, affrays, or general breaches of the peace are frequent, is hereby declared to be apublic nuisance, and detrimental to the public morals and may be abated under the provision of this act (§§ 34-111 — 34-119) as hereinafter set out.

Ark. Stat. Ann. § 34-113 (Repl. 1962) grants the prosecuting attorney, among others, authority to proceed under this Act, either in chancery or circuit courts. Ark. Stat. Ann. § 34-115 (Repl. 1962) provides a temporary injunction may be granted without notice or hearing as was done in the present case.

This same Act was considered in the case of Futrell v. State, 207 Ark. 452, 181 S.W. 2d 680 (1944). In Futrell the trial court ordered all the buildings “be closed and not hereafter be used for any purpose whatever for a period of twelve months except by order of the court.” We held the order exceeded the powers granted to the court under the statute; because at the time the order was made there had been no contempt proceedings. Prior cases had held such premises could be completely closed for all purposes only where there was a violation of a prior injunction prohibiting unlawful conduct on the premises. We also considered this Act in the case of Lawson v. State, 226 Ark. 170, 288 S.W. 2d 585 (1956). We modified the order of the trial court which had padlocked a dance hall for a period of one year preventing its operation for any purpose. We reduced the order to one enjoining the use of the property or permitting it to be used for illegal purposes for a period of one year. The order in Lawson was the same as that in Futrell in that it provided all persons be enjoined ‘ ‘from operating the said place, for any purpose whatsoever for a period of one year from this date. ’ ’ We held the order was too broad as the statute was intended to abate the nuisance rather than close the property for all purposes. Citizens have the right to use their property in a legal manner and courts should not interfere with such rights unless compelled to do so.

We do not find we have previously been asked to view Act 118 of 1937 as to its constitutionality. The case of Vandergriff v. State, 239 Ark. 1119, 396 S.W. 2d 818 (1965) concerned Act 109 of 1915. The statutes are very similar but they are different. Additionally, the holding of constitutionality in Vandergriff was dicta. In the present case the constitutionality of the Act has been squarely presented to us from the beginning. It was raised at the first opportunity and has continued to be a defense in this case. Therefore, we will consider the question of its constitutionality.

Article 2, section 21 of the Constitution of the State of Arkansas states:

No person shall be taken or imprisoned, or disseized of his estate, freehold, liberties or privileges; or outlawed or in any manner destroyed or deprived of his life, liberty or property, except by the judgment of his peers or the law of the land; nor shall any person, under any circumstances, be exiled from the State.

The Fifth Amendment to the Constitution of the United States requires that no person be deprived of life, liberty or property, without due process of law. Amendment 14, section 1 to the Constitution of the United States reads in part as follows:

. . . nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In Fuentes v. Shevin, 407 U.S. 67 (1972), the United States Supreme Court considered a somewhat similar case. The Florida statute under consideration provided for taking of property in a summary manner without notice or hearing. In Fuentes the Court stated:

The constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possession. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment — to minimize substantively unfair or mistaken deprivations of property, a danger that is especially great when the State seizes goods simply upon the application of and for the benefit of a private party. So viewed, the prohibition against the deprivation of property without due process of law reflects the high value, embedded in our consitutional and political history, that we place on a person’s right to enjoy what is his, free of governmental interference.

The Court further stated the requirement of notice and an opportunity to be heard raised no impenetrable barrier to the taking of a person’s property. Such safeguards are necessary to avoid unfair or mistaken deprivation of property interest. In Goss v. Lopez, 419 U.S. 565 (1975), the United States Supreme Court spoke of constitutional safeguards in the following language:

. . . there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.

In the more recent case of Barry v. Barchi, 47 U.S.L.W. 4812 (S. Ct. June 25, 1979), the Court dealt with a temporary injunction very similar to the one in question. In Barry the state had temporarily taken ahorse trainer’s license, without notice or hearing, because one of his horses, which had finished in the money, was determined to have been drugged. The New York rule, like our statute, provided for temporary suspension of the license without notice or hearing. The United States Supreme Court held that the trainer was entitled to a meaningful hearing before his license could be taken from him. In Gerstein v. Pugh, 420 U.S. 103 (1975), the Supreme Court struck down a Florida statute whicn allowed a person to be placed in jail without an opportunity for a probable cause determination. In Pugh the Court stated:

Although a conscientious decision that the evidence warrants prosecution affords a measure of protection against unfounded detention, we do not think prosecutorial judgment standing alone meets the requirements of the Fourth Amendment.

Fundamental requirements of due process require the opportunity to be heard at a meaningful time and a meaningful place before a person may be deprived of life, liberty or property. A temporary injunction, under the circumstances of this case, ordinarily turns into a permanent one. Even a delayed hearing is to a great extent an exercise in futility because even if the rights be restored the deprivation of rights during the temporary injunction cannot be regained. The statute in question here specifically allows the state to proceed without a bond. Therefore, damages incurred as a result of a wrongful temporary injunction would seldom, if ever, be recovered. The record in this case clearly shows there was no threat to life, liberty, or property, at the time the injunction was issued. In fact, the record does not disclose that there was anything more than drinking outside the building going on at this place. There were allegations that fights and other disturbances had occurred but all of the witnesses who testified denied personal knowledge of such occurrences. Merely operating a dance hall is not of itself illegal. Unlawful activities are often carried on outside other places of business.

We hold the statute authorizing a temporary or permanent injunction without notice and an opportunity to be heard fads to meet the fundamental requirements of the due process clause of the Fifth and Fourteenth Amendments to the Constitution of the United States and article 2, section 21 of the Constitution of the State of Arkansas. The statute is so broad as to allow the closing of a place of business merely upon the verified allegation of a prosecuting attorney without any proof whatsoever in support thereof. The opportunity for abuse of power in such cases is too great to be allowed to continue. Even an honest mistaken belief that a nuisance was being carried on would deprive the person of his property without due process of law. Therefore, we hold that Act 118 of 1937 is unconstitutional. The case is reversed and remanded with directions for the trial court to dissolve the injunction and cause the property to be returned to the appellants.

Reversed and remanded.

Harris, C.J., not participating.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I respectfully dissent because I do not think the rigid due process requirements insisted upon by the majority are appropriate in this case or mandated by the due process clauses of the Constitution of Arkansas and the Fifth and Fourteenth Amendments to the United States Constitution. In none of the cases cited by the majority is there the combination of factors presented here. The governmental interest in the prompt and effective abatement of public nuisances is one important factor. In addition, the proceedings are conducted in accordance with procedures in chancery courts, and all courts before which such proceedings are brought have all the jurisdiction and powers of equity courts. Ark. Stat. Ann. § 34-116 (Repl. 1962). Chancery court procedure with reference to injunctions is governed by Rule 65, Rules of Civil Procedure. Under Rule 65 (b), upon application of the party against whom a preliminary injunction or temporary restraining order has been issued without notice, the court shall as expeditiously as possible, hold a hearing to determine whether it should be dissolved.

Due process requirements of notice and hearing are not absolute. A great deal of flexibility exists in the requirements of due process of law, which calls only for such procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Where there is an important government interest involved, the requirements are much less strict than when only private interests are involved. The availability of a prompt hearing at the instance of the party against whom the governmental action is directed is an important factor in determining whether process is due. In my opinion, the fundamental right to due process is fully recognized and protected by this statute.

In Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972), relied upon by the majority, the United States Supreme Court held the statutory procedures violative of due process only because debtors were deprived of their property without provision for hearings at a meaningful time, but the court fully recognized that, in limited circumstances, immediate seizure of a property interest, without an opportunity for a prior hearing, is constitutionally permissible. Those circumstances are those in which:

1.The seizure has been directly necessary to secure an important governmental or general public interest;
2. There has been a special need for very prompt action; and
3. The state has kept strict control over its monopoly of legitimate force; the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in this instance.

See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S. Ct. 2080, 40 L. Ed. 2d 452 (1974), where specific instances were mentioned, viz:

Thus, for example, due process is not denied when postponement of notice and hearing is necessary to protect the public from contaminated food, North American Storage Co. v. Chicago, 211 U.S. 306 (1908); from a bank failure, Coffin Bros. & Co. v. Bennett, 277 U.S. 29 (1928); from misbranded drugs, Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 (1950); to aid the collection of taxes, Phillips v. Commissioner, 283 U.S. 589 (1931); or to aid the war effort, United States v. Pfitsch, 256 U.S. 547 (1921).

Even if the holding in Vandergriff v. State, 239 Ark. 1119, 396 S.W. 2d 818 is now taken to be dictum, I submit that it is sound and correct and that it should be followed, not overruled.

It may well be that the statute was unconstitutionally applied in this case, but, for some reason, appellants narrowed their attack to the facial constitutionality of the statute. It seems to me that the majority, however, is taking the wholly unwarranted step of holding the statute unconstitutional on its face. As a result, it seems that, until the General Assembly can act, there will be no means of abating a public nuisance of the nature covered by the existing statute, however great that nuisance may be. See The Rendezvous Club v. State, 247 Ark. 670, 447 S.W. 2d 842.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    GATZ INSURANCE AGENCY, INC. et al v. Martha CHAMBERLAIN
    79-280
    590 S.W. 2d 283
    Opinion delivered December 10, 1979
    (In Banc)

      Herrn Northcutt and Frierson, Snellgrove & Laser, by: G. D. Walker, for appellants.

      Dennis Zolper, for appellee.
   George Rose Smith, Justice.

This is a claim for unemployment compensation. The various administrative agencies denied the claim, finding that the claimant voluntarily quit her job without good cause connected with her work. Ark. Stat. Ann. § 81-1106 (a) (Supp. 1979). The circuit court reversed, sustaining the claimant’s contention that her claim falls within an exception in the same subsection, providing that “no claimant shall be disqualified under this subsection if he has voluntarily left his last work to accompany, follow, or join the other spouse in a new place of residence.” Id.

On July, 7, 1978, the claimant, a resident of Jonesboro, voluntarily left her employment in order to marry Robert J. Chamberlain and move to Indiana, where Chamberlain was living. The couple were married in Tennessee three days later, on July 10, and took up their residence in Indiana.

Even construing the statute liberally, we cannot agree with the circuit judge’s extension of its language to reach this case. A spouse, by definition, is a married person, a husband or wife. This claimant was not married when she left her job and thus could not have quit to accompany, follow, or join “the other spouse.” The statute as written has certainty, which the legislature presumably considered to be desirable; it applies only to married persons. But if the statute is interpreted to apply also to a single person who intends to get married three days later, it might equally well apply to one who intends to get married three weeks or three months later. A rule of liberal construction does not mean that the courts are free to substitute vagueness for precision.

The claimant also states that she was “technically” still employed at the time of her marriage, because she was entitled to two weeks’ accrued vacation pay when she quit. The record, however, does not even raise an issue of fact on this point, much less establish the claimant’s contention. There is no indication whatever that the claimant decided to go on a vacation without terminating her employment. To the contrary, she left for the specific purpose of getting married and moving to another state. She was voluntarily unemployed and free to accept another job on the day she left Jonesboro. The administrative agencies did not find, and indeed had no basis for finding, that the claimant was still employed by the appellant when she was married three days after she left her work.

Reversed.

Harris, C.J., not participating.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I cannot agree with my brothers in this opinion. The only question is whether appellee quit her job to join her husband. The trial court was absolutely correct in holding that she quit to join her husband. When she left her employment it was for the purpose of joining Robert J. Chamberlain. When she arrived in Indiana he was her husband. It is true that for two days following her last day of work she was not married. However, when she arrived at her new home in Indiana she joined her husband, the express purpose of her leaving her job. It is entirely too technical to disqualify her because she did not marry at least one day before leaving her employment.

We have always construed this statute to confirm to the intent of the General Assembly, until this time anyway, that being to protect people who are unemployed. In the present case we have turned the other direction and given assistance to the cause of increasing the number of unemployed who cannot draw unemployment benefits. In my opinion, the common-sense interpretation of this statute would allow this lady to draw benefits.


author: George Rose Smith, Justice.

text:
    HOUSTON CONTRACTING COMPANY et al v. Jessie T. YOUNG
    79-297
    590 S.W. 2d 653
    Opinion delivered December 10, 1979
    (In Banc)

      Laser, Sharp, Haley, Young, Huckabay, P.A., for petitioners.

      Shackleford, Shackleford & Phillips, P.A., for respondent.
   George Rose Smith, Justice.

When two states both have grounds for asserting jurisdiction over a claim for workers’ compensation benefits, do payments of compensation made to the injured worker under the laws of one of the states toll the statute of limitations as to a claim later filed in the other state? The few existing decisions in other jurisdictions are split. Larson, Workmen’s Compensation, § 78.43 (a) (1976). In the present case our Commission held that running of the statute is not suspended, because payments made under the law of another state do not constitute the “payment of compensation” within the meaning of our statute of limitations. Ark. S'tat. Ann. § 81-1318 (b) (Repl. 1976). The Court of Appeals reversed. On review we explained our reasons for granting certiorari in this particular case. Houston Contracting Co. v. Young, 267 Ark. 44, 589 S.W. 2d 9 (1979).

There is no doubt that both Arkansas and Texas might have asserted jurisdiction in this case. The claimant was a resident of Arkansas when he was first hired by this employer to work on a construction job in Arkansas in 1941. The employer is licensed to do business in Arkansas. The claimant continued to reside in Arkansas during the 33 years that he worked for the.company, in Arkansas, in Texas, and in other states. He was still a resident of Arkansas in 1974 when he injured his back while working for the company on a construction job in Vidor, Texas. He underwent medical treatment and surgery in Arkansas and Texas. The employer has its headquarters in Houston, Texas. The insurance carrier, without controverting the claim, made payments under the Texas compensation law until the claimant employed counsel and filed a claim in Arkansas. The parties do not question the possible jurisdiction of either state.

The Court of Appeals, in disagreeing with the Commission, relied upon Auslander v. Textile Workers Union of America, 397 N.Y.S. 232, 59 A.D. 2d 90 (1977). There the court undertook to reconcile the conflicting results in other states. The court reasoned that the claimant, on the one hand, should be bound by his acceptance of an official award of compensation in one state if he had actively participated in the procurement of the award and if the employer or insurance carrier had not improperly or in bad faith channeled the claim into that state. If the claimant, on the other hand, did not know that the payments he was receiving were pursuant to the laws of another state, and the payments were not made under an official award, “an employer’s or carrier’s contention that the payment is ‘under the laws of another state’ is a self-serving claim which should not be given effect.’’ The New York court concluded that the issue there was one of fact and remanded the cause to the compensation board for further proceedings.

We agree with the general view expressed by the New 'York court and adopted by our own Court of Appeals, but we disagree with the latter’s apparent assumption that no issue of fact is presented in the case at bar. Here no award appears to have been made in Texas; so it cannot be said that the claimant has elected to proceed under Texas law by actively participating in the procurement of compensation in that state. On the other hand, the claimant testified that his compensation checks came from Beaumont, Texas, and that in response to a letter from the Texas Industrial Accident Board he had filled out a form describing how the accident happened and what treatment he had received. Thus this case, like the one in New York, falls somewhere between the two possible extremes. The Commission must weigh the competing considerations of policy to decide whether the running of the Arkansas statute was tolled by the Texas payments.

The issue was not fully developed in the testimony before the administrative law judge and in fact was not actually decided by the Commission, which treated the question as one of law. We shall not attempt to speculate about the controlling considerations of fairness to be followed when the facts have been fully developed and finally determined. The cause is remanded to the Court of Appeals with directions that it be sent back to the Commission for further proceedings.

Modified and remanded.

Harris, C.J., not participating.


author: John A. Fogleman, Justice.

text:
    FARM SERVICE COOPERATIVE, INC. v. GOSHEN FARMS, INC. et al
    78-196
    590 S.W. 2d 861
    Opinion delivered December 10, 1979
    (In Banc)
    [Rehearing denied January 14, 1980.]

      Dickson & Ball, for appellant.

      Jones & Segers and Pearson & Pearson, by: Thomas Pearson; for appellees.
   John A. Fogleman, Justice.

Appellant Farm Service Cooperative, Inc. questions the propriety of a summary judgment dismissing its counterclaim against Goshen Farms, Inc. and cross-complaint against George Melbourn and Carl Rose. This pleading was filed in a suit brought by Goshen Farms, Inc. (hereafter referred to as Goshen) against Farm Service Cooperative, Inc. (hereafter called Farm Service).

The questions at issue will be better understood if we first develop some of the background about which there seems to be no dispute. Goshen leased a dwelling house and four poultry houses, and the equipment therein, to Farm Service by written lease dated March 19, 1969 for a term of three years beginning April 2, 1969. Melbourn and Rose were the only two stockholders of Goshen. Each of them owned one-half of the outstanding capital stock. Melbourn was employed as general manager of Farm Service until his employment was terminated on or about August 15, 1970.

After the termination of the lease Goshen filed an action in the Circuit Court of Washington County (No. 8360) on May 17, 1972, seeking a declaratory judgment declaring the rights of the parties to the lease and recovery of damages for injury to the leased property allegedly done by Farm Service. By agreement of the parties, that part of Goshen’s complaint seeking declaratory judgment was tried and a jury verdict adverse to Goshen was rendered on May 12,1973. It was agreed by the attorneys for the parties that the portion of Goshen’s complaint seeking recovery of damages would be deleted and that Farm Service would not plead prior adjudication if an action for damages to personal property should subsequently be filed.

On December 1, 1972, Melbourn had filed an action (No. 8749) against Farm Service claiming damages for the alleged breach of his contract of employment by Farm Service. This case was tried beginning February 3,1975. A jury verdict in favor of Farm Service was returned on February 5, 1975, and judgment was entered pursuant to that verdict.

On May 24,1974, Goshen Farms did file an action (CIV 74-351) in the Circuit Court of Washington County seeking to recover $6,000 damages for injury to personal property. This complaint was amended to increase the amount of damages sought to $7,500 on December 5, 1975. This case was set for trial on September 10, 1976, but it was dismissed without prejudice by Goshen Farms on September 2, 1976.

The present action was filed on January 17, 1977. In its complaint, Goshen again alleged that the use of the leased property and equipment by Farm Service caused extensive damage to the property and equipment, and that Farm Service had breached the lease contract by failure to comply with its agreement to return the leased premises, property and equipment to Goshen upon termination of the lease in the same condition they were at the time Farm Service took possession. Goshen sought damages of $7,500. Farm Service filed an answer, which was a general denial, reserving the right to amend and to file other pleadings if further investigation and discovery procedures warranted the filing of additional pleadings.

Farm Service did file its counterclaim and cross-complaint on April 6, 1977. It alleged that: Goshen was the alter ego of George Melbourn and Carl Rose; and that Melbourn and Rose, through their alter ego, Goshen, had instituted civil action against it for declaratory judgment and for damages on May 17, 1972; that Melbourn had brought his action against Farm Service on December 1, 1972; that on May 24, 1974, Melbourn and Rose, through their alter ego, Goshen, had instituted another action for damages against Farm Service, which it dismissed shortly before the designated trial date; that each action was terminated favorably to Farm Service and that each of them and the present action had been brought by Melbourn and Rose maliciously and without probable cause and for the purpose of harassing Farm Service; that Goshen had, through Melbourn, repeatedly made threats to institute additional civil actions against Farm Service; that Farm Service had been compelled to pay $20,455.12 in attorney’s fees in connection with these actions and would be required to pay additional attorney’s fees in defending this action; and that appellant was entitled to recover exemplary damages. Farm Service prayed for its attorney’s fees, $10,000 exemplary damages and dismissal of the complaint.

The demurrers of Goshen, Melbourn and Rose were overruled on May 12, 1977. Goshen’s reply and the answer of Melbourn and Rose were consolidated in a pleading filed May 25, 1977. They denied that Melbourn and Rose, acting through their alter ego, Goshen, had, on May 17, 1972, commenced a civil action against Farm.Service, but admitted that Goshen had, on May 17, 1972, commenced a civil action, and that, by an agreement between the attorney for Goshen and the attorney for Farm Service, the issue of damages to property was to be severed and handled in separate litigation.

On April 12, 1978, Goshen, Melbourn and Rose filed their motion for summary judgment on the counterclaim and cross-complaint filed against them by Farm Service, asserting that there was no justiciable issue of fact and that Goshen was not the alter ego of Melbourn and Rose. The motion was based upon the pleadings and judgments in all the actions previously mentioned, including those in the present action, all of which were made exhibits to the motion, along with the following:

1. The affidavit of F. H. Martin, the attorney of record for Goshen in the action filed against Farm Service on May 17, 1972, stating the agreement relating to splitting of that cause of action, so the portion relating to the declaratory judgment on the lease agreement could be tried without prior adjudication being pleaded when the cause of action for damages to personal property was filed. The agreement was confirmed by letter to Martin from James F. Dickson, dated April 25, 1974.
2. The docket sheet in the case of Goshen against Farm Service (No. 74-351), showing an entry dated September 2,1976, over the signatures of Thomas Pearson and Joseph William Segers, Jr., dismissing the action without prejudice.
3. Responses of Goshen, through its president George Melbourn, to interrogatories propounded to it by Farm Service in No. 74-351.
4. The affidavit of Carl Rose that he was one of the incorporators of Goshen, which was organized and incorporated in December, 1975 and early 1976, that shortly thereafter all the stockholders, except for himself and Melbourn, “passed out of the picture,” and that, at the time of the filing of cause No. 8749 by Melbourn and at all times subsequent thereto, he and Melbourn were the only stockholders of Goshen; and that Goshen Farms, Inc. is a separate entity from him and Melbourn, and that it is still in existence as a corporation.

In its response to the motion for summary judgment, Farm Service asserted that Goshen, Melbourn and Rose were not entitled to judgment as a matter of law upon the ground that the verified pleadings in the case, discovery depositions and interrogatories showed that there remained disputed questions of fact. The affidavit of Walter F. Losey, general manager of Farm Service, was filed with this response. In the affidavit, Losey stated that: after Melbourn was fired as general manager of Farm Service on August 15, 1970, he made numerous statements to Losey and others that he would get even with Farm Service, or words to that effect; that on November 20, 1977, Rose indicated to Farm Service that he was turning over the decision-making process of the corporation to Melbourn; after relating the allegations of the counterclaim and cross-complaint as to the various lawsuits, that no probable cause existed for the filing of the actions; and that Melbourn had also repeatedly made threats to institute additional civil actions against Farm Service.

The circuit court’s order granting summary judgment dismissing the counterclaim and cross-complaint was based upon the following reasons:

The original Case No. 74-351 claimed damages for breach of contract in failing to vacate the premises and excessive damages to poultry equipment. The attorneys for the parties stipulated that the cause of action for damages to poultry equipment should be passed for trial at a future date. The cause of action seeking damages for breach of contract for failing to renew lease resulted in a verdict for defendant.
The contents of the Complaint show no indiscretion or malice expressed or implied. The doing of something a person has a legal and procedural right to do is no basis for malice.
The present suit by Goshen against Farm Service has no connection with the employment controversy between Farm Service Cooperative and George Melbourn. The fact that George Melbourn was a substantial stockholder in Goshen Farms, Inc., in itself is immaterial in piercing the corporate entity unless one of the following is alleged and proved:
(1) To prevent a contravention of governmental policy.
(2) In case of a national emergency.
(3) Fraud.
(4) Inequity of limited liability.
(5) Injustice to controlling shareholder.
(6) Oppression of a shareholder’s interest.
(7) Jurisdictional and procedural factors.
None of these grounds have been alleged or proved nor is there any proof of them to justify piercing the corporate entity and holding George Melbourn and Carl Rose personally liable as to the counterclaim for malicious prosecution. The counterclaimant must allege and prove the original proceedings terminated in his favor, Coffelt v. Gordon, 239 Ark. 619. In addition, Farm Service Cooperative must allege and prove that the proceeding terminated in such a manner that it cannot be revived.
This part of the suit is still pending and unresolved.
The Farm Service Cooperative might well have some cause against Goshen Farms as to the first suit as it was terminated in its favor but such suit would have to be a separate cause of action in another suit. Lack of probable cause in the first suit must be proved independently of the element of malice, Gazzola v. New, 191 Ark. 724.
The essential elements for the tort of malicious prosecution are:
(1) A proceeding instituted or continued by the defendant against the plaintiff.
(2) Termination of the proceeding in favor of the plaintiff.
(3) Absence of probable cause for the proceedings.
(4) Malice on the part of the defendant.
(5) Damages.
The Farm Service Cooperative in its brief refers to allegations of ‘ ‘ Malicious Abuse of Process ’ ’ but a careful reading of the counterclaim fails to reflect any such allegation.
Farm Service Cooperative refers to the nonsuit of 74-351 of the claim for damage to poultry equipment, which is the same allegation that is contained in this suit, as malicious. The taking of a nonsuit and refiling within one year is a statutory right given to any litigant and cannot be considered as evidence of malice or want of probable cause. This nonsuit also is not a final determination of the lawsuit upon which a suit for malicious prosecution could be brought.

We do not agree with appellees that the order granting summary judgment is not appealable, as a final judgment. It dismisses the counterclaim, and thereby discharges both Melbourn and Rose from this action. The dismissal of this counterclaim was not by granting a motion for dismissal but by summary judgment. A summary judgment could be a judgment on the merits. 6 Moore’s Federal Practice (2d Ed.) 56-55, § 56.03. As such, it could be conclusive as to the rights of appellant as to some portions of his counterclaim in a future action. We view the requirements of finality in such a case from a practical, rather than technical, approach. Purser v. Corpus Christi State National Bank, 256 Ark. 452, 508 S.W. 2d 549. When we do, we find this order appealable.

We stated the rule of finality in Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605. There we said:

** * For a judgment to be final and appealable, it must in form or effect: terminate the action; operate to divest some right so as to put it beyond the power of the court to place the parties in their former condition after the expiration of the term; dismiss the parties from the court; discharge them from action; or conclude their rights to the matter in controversy.

Appellant contends that the counterclaim and motions for summary judgment present a question of fact concerning the issue of malicious prosecution. The parties agree that the trial judge correctly stated the elements of the tort of malicious prosecution.

Appellant alleged that there was no probable cause for any of the actions by Melbourn or Goshen, and that they were brought maliciously. Although both are essential elements of the tort of malicious prosecution, malice and probable cause are not convertible terms and neither follows as a legal presumption from the other. Foster v. Pitts, 63 Ark. 387, 38 S.W. 1114. The two elements must concur. Gazzola v. New, 191 Ark. 724, 87 S.W. 2d 68. Although a jury may infer malice from lack of probable cause, lack of probable cause may not be inferred from malice. Malvern Brick & Tile Co. v. Hill, 232 Ark. 1000, 342 S.W. 2d 305; Louisiana Oil Refining Corp. v. Yelton, 188 Ark. 280, 65 S.W. 2d 537; Foster v. Pitts, supra; Chicago, R.I. & P. Ry. Co. v. Gage, 136 Ark. 122, 206 S.W. 141. The burden was on appellees, as movants, to show that there were no justiciable issues of fact. Lee v. Westark Investment Co., 253 Ark. 267, 485 S.W. 2d 712. There is nothing in the affidavits or documents filed with the motion for summary judgment to show that there was any probable cause for the actions. Consequently, we must say that appellees have failed to show that there is not a justiciable issue as to lack of probable cause for them; and, since malice may be inferred from lack of probable cause, there was an issue of facts as to malice. This does not mean that the motion for summary judgment must be reversed in its entirety.

Insofar as the declaratory action is concerned, there has been a final determination of the action favorable to appellant, and, if the other elements of the tort of malicious prosecution exist, summary judgment would not be proper. We do not agree that a suit for malicious prosecution on account of this action could only have been brought as a separate cause of action. Under Ark. Stat. Ann. §§ 27-1121, 27-1123 (Repl. 1962) this cause of action would be barred if not asserted by way of counterclaim in the present action. May v. Exxon Corporation, 256 Ark. 865, 512 S.W. 2d 11. Of course, the suit by George Melbourn against Farm Service had been terminated favorably to appellant. But the action against George Melbourn for malicious prosecution on that account is not properly the basis of a cross-complaint in the present action unless Goshen is the alter ego of Melbourn. The mere fact that Melbourn owned 50% of the stock of the corporation does not make that corporation his alter ego. Actually, the fact that someone else owns one-half of the corporate stock is a strong indication that it is not.

The affidavit of Rose clearly refutes the allegations of Farm Service that the corporation was the alter ego of Melbourn. It is not alleged that Rose is the alter ego of Melbourn or that he had anything to do with the action brought by Melbourn. Nothing in the sole affidavit presented by Farm Service refutes the statements in the affidavit of Rose. The statement of Rose to Losey, that he was turning the management decisions over to Melbourn, made after the present action was begun, does not begin to support the allegations of Farm Service orrefute Rose’s statements. There simply is no basis shown for piercing the corporate veil, either by the allegations of the complaint or by the affidavits filed. ”... [W]hen the movant makes a prima facie showing of entitlement to the relief sought, the respondent must remove the shielding cloak of formal allegations and demonstrate a genuine issue as to a material fact.” Miskimins v. City National Bank, 248 Ark. 1194, 456 S.W. 2d 673.

There certainly is no basis for a counterclaim for malicious prosecution in the filing of the present action. One of the elements of that tort is termination of the proceeding in favor of the party seeking recovery for malicious prosecution. Coffelt v. Gordon, 239 Ark. 619, 390 S.W. 2d 633. This action had not been terminated when the counterclaim and cross-complaint were filed or until the motion for summary judgment was granted against Farm Service, so an essential element of the cause of action as to the present complaint is missing. As a matter of fact no action by Goshen for damages to personal property has been terminated favorably to Farm Service. The deletion of the damage claim from the first action by Goshen by agreement of the parties was certainly not a termination of the proceeding, when it was expressly agreed that prior adjudication would not be pleaded. The dismissal without prejudice of the next action by Goshen was permissible and was not a termination of proceeding in the sense required by the definition of malicious prosecution. In Coffelt we pointed out that, until a complaining party has shown that the action against him was unsuccessful, he has not shown that he has suffered any damage, so if he were permitted to sue before he had won the first suit, he might secure a recovery for the bringing of an action which the court entertaining it might find to be well brought.

The present action was permissible under Ark. Stat. Ann. § 37-222 (Repl. 1962); Oliver v. Miller, 239 Ark. 1043, 396 S.W. 2d 288; Campbell v. Coldstream Fisheries, 230 Ark. 284, 322 S.W. 2d 79. Until it is concluded, there is no basis for a cause of action against Goshen for malicious prosecution on the claim for damages for injury to personal property. The summary judgment as to that cause of action was correct because it was prematurely brought.

A similar situation was considered in Hales v. Raines, 162 Mo. App. 46, 141 S.W. 917 (1911), a malpractice action brought after the plaintiff had suffered an involuntary non-suit in a prior suit instituted against a physician on the same cause of action, except for some allegations of negligence omitted in the second suit. The defendant filed a counterclaim for malicious prosecution in the second suit based on the omitted allegations of negligence. The trial court peremptorily instructed a verdict for the plaintiff on the counterclaim. On appeal it was held that this action was proper because it could not be said that the cause of action was concluded or its prosecution ended by the non-suit. The court there said:

*** One matter which it is essential to show in a suit for malicious prosecution is that the prior prosecution or suit is ended, and plaintiff in the malicious prosecution action is finally discharged therefrom. Until such appears, no cause of action as for a malicious prosecution has accrued, for the very good reason that plaintiff in the suit alleged to have been maliciously prosecuted may finally prevail, and thus put an end to the whole matter. In this view the courts universally declare that, where a suit or prosecution has been commenced and afterwards dismissed with the intention of commencing it over again on the same cause of action, and it appears that it has been subsequently commenced thereon, such prior dismissal amounts to no more than a suspension of the prosecution, and is not an ending thereof in the legal sense essential to support a suit for malicious prosecm tion of the prior action. In other words, until the subsequent suit on the same cause of action is finally disposed of adversely to plaintiff therein, defendant may not maintain a suit on account of its malicious prosecution; for, in contemplation of law, the prior suit is regarded as still pending. ***

We agree with that court and its holding, where, as here, there was a voluntary non-suit, with the right to refile the action within one year.

Appellant relies upon Greer v. Cook, 88 Ark. 93, 113 S.W. 1009, to support its contention that a cause of action for abuse of process was stated. It reads the opinion in that case as holding that when any action is commenced for vexation and oppression there is an abuse of process. This was not the holding in Greer. There we held that the remedy for the institution of a suit by a creditor in a foreign jurisdiction, after a suit on the same cause of action had been reduced to judgment in a justice of the peace court in Arkansas and while an appeal from that judgment was pending, for the sole purpose of vexation and oppression of the judgment debtor, was an action at law for the malicious abuse of process, upon the authority of Baxley v. Laster, 82 Ark. 236, 101 S.W. 755, 10 LRA (n.s.) 983, 118 Am. St. Rep. 64. It is significant that in Greer a writ of garnishment had been issued and served upon the judgment debtor’s employer in Arkansas and that the new suit in the foreign jurisdiction included garnishment proceedings against the employer to seize the same wages covered by the Arkansas garnishment, allegedly for the purpose of defeating the judgment debtor’s exemptions in Arkansas.

The trial court correctly held that there were no allegations which would support a cause of action for abuse of process. The following comments on this cause of action in a note entitled “Malicious Prosecution— The Law in Arkansas,” by Larry C. Wallace, in Arkansas Law Review, Vol. 22, p. 340 at p. 355 et seq, are appropriate.

*** This narrow tort, seldom used in Arkansas, means exactly what it says: it is the misuse of some court process, civil or criminal, after it has been properly obtained, for some ulterior purpose not contemplated by law.
The essential elements of abuse of process are usually stated to be: first, an illegal, improper use of the process; sécond, an ulterior purpose which culminated in the abuse; and third, a resulting damage. In an action for malicious prosecution the court concentrates on the facts before the action was commenced, while in an action for abuse of process, the question is whether the use or application of legal process, after it was issued, was one for which it was designed.
Abuse of process is used as a label for a variety of situations where the circumstances will not warrant an action for malicious prosecution. Use of judicial process which has been held to justify an action for abuse of process includes: (1) wilful and malicious arrest of plaintiff when his innocence is known; (2) personal service procured by fraud; (3) excessive execution on a judgment; (4) vexations and oppressive suits in a foreign jurisdiction, and (5) attachment or garnishment for a greatly excessive amount.

See also, Baxley v. Laster, supra.

There is nothing here even suggestive of such a cause of action as the author of that note properly describes. Examples of abuse of process are found in some of our decisions. In Baxley, we held that a judgment debtor’s allegations that repeated issuance of writs of garnishment by a judgment creditor were to annoy, vex and harass the debtor, to tie up the wages which were his only means of support, and to cause him to lose time and incur expenses in attending court, issuing notices, filing schedules and claims of exempt property, and making defenses to the suits and to endanger his occupation would support an action for abuse of process.

The crux of the cause of action is the improper use of process after it was issued. Smith v. Nelson, 255 Ark. 641, 501 S.W. 2d 769. There is simply no cause of action for abúse of process stated here.

Appellant complains, however, that appellees argued, in support of their demurrer, that appellant’s counterclaim is couched in terms of “abuse of process and/or malicious prosecution.” Appellant then says that, if the court had sustained, rather than overruled, the demurrer, appellant could have amended its complaint, but that by reason of the summary judgment, it is deprived of that right. Although there is some question about appellant’s right to amend at this state of the proceeding, we feel that it should be given ten days after the filing of the mandate in the trial court to amend its complaint to state a cause of action for abuse of process, if it has one.

The summary judgment is reversed as to Goshen insofar as the declaratory judgment action is concerned, and as to Melbourn, insofar as his suit against Farm Service is concerned; otherwise, it is affirmed, subject to the right of appellant to amend its complaint to state a cause of action for abuse of process within ten days after the mandate from this court is filed in the trial court.

Harris, C.J., not participating.

Byrd, J., dissents as to the reversal.


author: John I. Purtle, Justice. Darrell Hickman, Justice,

text:
    John W. HOLLAND et al v. Henry DIETZ
    79-113
    595 S.W. 2d 931
    Substituted opinion on denial of rehearing delivered February 11, 1980

      Daggett, Daggett & Van Dover, by: W. H. Daggett, for appellants.

      Walker, Campbell & Young, by: Gene C. Campbell, for appellee.
   John I. Purtle, Justice.

Appellants filed suit to collect a real estate commission from appellee. The chancellor found that appellee was not liable for the commission because the buyer was unable to handle the financing necessary to pay for the property. Appellants argue on appeal that the inability of the purchaser to pay is no defense to appellee because he accepted him as a buyer for the property. Under the facts and circumstances of this case we agree with the chancellor and uphold the decree.

Appellants’ listing of the property had expired when they approached appellee about selling a part of the property to the McIntosh Corporation. At this time appellee informed them he had sold the entire properties to a man named Barr. The original listing had been for $6,000,000; this was the price agreed upon between Barr and appellee. However, both the seller and buyer agreed the sale was conditioned upon Barr being able to obtain an acceptable loan in order to complete the sale. At the time of the trial the agreed financing had not come forth.

After appellee informed appellants he had sold the property he wrote a letter, at the request of the listing agent, one of the appellants, stating he had sold the property. The letter did not explain there was a condition to the sale to Barr. So far as the record reveals, there was no other offer and acceptance and no suit by any party for specific performance or damages for breach of contract other than the one before us. The chancellor held, in effect, that the contract between appellee and Barr was conditional and unenforceable. No proof of any kind was offered concerning a sale or attempted sale to anyone other than Barr.

We cannot say the chancellor erred in finding that the sale to Barr was conditional and that the condition had not materialized. We also agree that appellee had the right to enter into any kind of contract he desired after appellants’ listing expired. We agree with appellants that had appellee sold the property to someone who had been led to him by the efforts of appellants, even after their listing had expired, he would be obligated to pay them a commission. However, when the owner enters into a contract with one so procured by the listing agent, as here, the owner is not bound to sell on the same terms and conditions as those required by the former listing contract. In fact, he is not bound to sell at all and certainly no commission is due if the offer is rejected or no sale is made.

Both parties rely upon Moore v. Irwin, 89 Ark. 289, 116 S.W. 662 (1909). So do we. We read Moore to state that whenever a broker or agent brings a purchaser to the owner and the purchaser is able and willing to buy the property by way of.a valid contract upon the terms named by the owner, the broker or agent is entitled to a commission. In fact, the exact words of the opinion state:

“. . . the broker becomes entitled to the usual commission whenever he brings to his principal a party who is able and willing to take the property and enter into a valid contract upon the terms then named by the principal, although the particulars may be arranged and the matter negotiated and completed between the principal and purchaser directly.”

The Moore opinion quoted from Pinkerton v. Hudson, 87 Ark. 506, 113 S.W. 35 (1908), as follows:

“. . . where a real estate broker contracts to produce a purchaser who shall actually buy, he has performed his contract by the production of one financially able, and with whom the owner actually makes an enforceable contract of sale. The failure to carry out that contract, even if the default be that of the purchaser, does not deprive the broker of his right to commissions.” ' .

Obviously, both of the above extracts from the Moore opinion favor appellee. However, appellants look to other language in the same opinion which states:

“The broker, having presented a proposed purchaser who is capable of entering into a contract of purchase, and willing to do so, has earned his commission when the vendor accepts him and enters into a valid contract with him for the sale of his land, even though the sale is never in fact consummated by reason of the failure of the proposed purchaser to perform his part of the contract. *** If he does so, and enters upon an executory contract for the sale of the land upon his own terms, the broker is entitled to the commission agreed upon, whether the contract is ever fully executed or not. In the absence of contract it is not the business of the broker to see that the purchase money is paid, or to enforce the contract of sale. ...”

If we were to decide the case upon the theory of the first two quotations above we would have to affirm. On the other hand, if we relied solely upon the last portion quoted above we possibly could reverse. We try to reconcile different opinions whenever possible. When we rely upon a single opinion we must try to determine the basis of the ruling. Do we have conflicting statements in the same opinion? We think not. Upon a careful reading of Moore we find the whole opinion is based upon the existence of a valid and enforceable contract between the seller and the buyer. All the language treats the purchaser as being able and willing to enter into the contract. It simply places the responsibility upon the seller to enforce the contract whether the purchaser is later willing or not. We interpret this language to mean that the. seller has a duty to enforce a valid contract, regardless of the terms.

If the Moore opinion is conflicting, some parts must be treated as being dicta or inartfully stated in order that there be a holding in the case. It cannot hold both ways on the samé facts and circumstances. At least the predominant thought in the opinion is that an owner cannot deny a broker a commission by failing to enforce a contract which he has entered into voluntarily and without fraud or misrepresentation on the part of the broker. On the other hand, an agent will not be permitted to bring an insolvent or fraudulent buyer to the seller and thereby earn a commission.

In the present case we do not believe the facts show the owner is failing to enforce a valid contract. The failure of Barr to obtain suitable financing is a condition which is not under the control of the seller. He cannot enforce it unless Barr reneges on his promise. No one would argue appellants were entitled to a commission if they presented an offer from an insolvent buyer. Nevertheless, appellants claim Barr was a product of their efforts thereby entitling them to a commission even though he is financially unable to complete the transaction. If Barr is their purchaser, he is also their unable purchaser. The elementary requirement of the buyer being able and willing is absent here. Apparently he is willing but unable. He foresaw this possibility and included in his offer a condition of certain financing. There is no evidence that Barr is actually defaulting in order to avoid a valid contract. In fact, his testimony at the trial was to the effect he was still trying to complete the deal.

Since appellee was under no duty to sell the property after the listing expired, he most certainly was free to enter upon a conditional sale if he so desired. If this sale is completed then there will be a legal obligation on the part of appellee to pay appellants a commission of $275,000. This was the decree of the chancellor and we agree it was correct. We uphold the chancellor if the decree was correct but based upon the wrong reason. Had the contract of sale been unconditional, we would hold otherwise.

Affirmed.

Fogleman, C.J., and George Rose Smith and Hickman, JJ., dissent on the basis of the dissent of Hickman, J., to the original opinion.

Darrell Hickman, Justice,

dissenting. The chancellor found against the seller Dietz on all critical issues of fact but held as a matter of law that since the buyer Barr was unable to pay the purchase price, Dietz was not liable for the commission. The critical findings made by the chancellor are as follows:

-5-
The court finds that the plaintiff Holland was instrumental in getting the parties together for the sale and purchase of this property and if the sale to Barr had been consummated the defendant would have owed the commission to Holland. It makes no difference that the first listing agreement had expired at the time that buyer and Dietz entered into the contract of sale since Holland had put Mr. Barr in touch with the defendant during the time that the listing agreement was in effect.
-6-
However, the preponderance of the evidence is that Mr. Barr is not and was not ever financially able to make the purchase of the property. It is true that he was ready and willing to purchase the property and signed a contract to that effect, but the law contemplates that a buyer provided by a real estate broker shall be ‘ready, willing and able’ to make the purchase. Even though Mr. Barr signed a contract of purchase there is no evidence that he was financially responsible. The contract would not have been enforceable against Mr. Barr by specific performance.

The chancellor’s application of the law was wrong. The inability to pay is no defense in this case.

In the case of Moore v. Irwin, 89 Ark. 289, 116 S.W. 662 (1909), we held that, the financial ability of the purchaser was not relevant unless thé real estate broker expressly warranted the purchaser was financially able to pay for the property. In this case it was contended by Dietz that since he selected the buyer, and the buyer was not furnished by the appellant, there was no liability. When the seller selects the purchaser, then he is in no position to complain of the inability to pay. Moore v. Irwin, supra; Dillinger v. Lee, 148 Ark. 374, 250 S.W. 332 (1923); Boyles v. Knox, 211 Ark. 426, 200 S.W. 2d 966 (1947); El Dorado Real Estate v. Garrett, 240 Ark. 483, 400 S.W. 2d 497 (1966).

We do not know from this record whether Barr has actually purchased the property. During the trial he testified that he was still trying to raise the money and intended to buy the property. It may be that he has already purchased it.

The appellee cannot have it both ways. He cannot complain that he is liable because the buyer was not furnished by the broker and. at the same time claim he is not liable because the buyer is unable to pay the price. Under those circumstances, Deitz has no complaint that the buyer he selected cannot pay for it. Nobody told him that he could.

Needless to say, I would reverse the decision of the chancellor and enter judgment for the appellant.

Fogleman, J., joins in this dissent.


author: Frank Holt, Justice.

text:
    Kenneth MARION v. STATE of Arkansas
    CR 79-175
    590 S.W. 2d 288
    Opinion delivered December 10, 1979
    (In Banc)

      John W. Achor, Public Defender, by: James Phillips, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was charged with rape in violation of Ark. Stat. Ann. § 41-1803 (Repl. 1977). Prior to the trial, appellant filed a motion for an in camera hearing to determine the admissibility at trial of the victim’s prior sexual conduct. Ark. Stat. Ann.§ 41-1810.2 (a) (Repl. 1977). After a hearing the court denied the admissibility of some of this evidence. Appellant brings this interlocutory appeal pursuant to Ark. Stat. Ann. § 41-1810.2 (c).

Appellant first asserts that exclusion of the victim’s prior sexual conduct at trial impairs his ability to establish his defense to the rape charges. His argument is two fold: (1) application of §§ 41-1810.1 and 41-1810.2 violates his Sixth Amendment due process right at a criminal proceeding to confront his accuser, and (2) at the in camera pretrial hearing, he is forced to reveal certain aspects, the weakness or strength, of his defense in violation of his Fifth Amendment right against self-incrimination.

The application and interpretation of this exclusionary policy in rape cases will not doubt continue to be the source of much litigation. This statute provides that evidence of the victim’s prior sexual conduct is inadmissible at trial except where the court, at an in camera hearing, makes a written determination that it is relevant to a fact in issue and that its probative value outweighs its inflammatory or prejudicial nature. Ark. Stat. Ann. § 41-1810.2 (b) (Repl. 1977), and Bobo and Forrest v. State, 267 Ark. 1, 589 S.W. 2d 5 (1979).

We are satisfied that the exception to the general exclusionary policy and the in camera hearing provide the appellant with a full and fair opportunity to confront his accuser. See Pointer v. Texas, 380 U.S. 400 (1964). In Sterl ing v. State, 267 Ark. 208, 590 S.W. 2d 254 (1979), we stated:

This statute clearly allows evidence of the alleged victim’ s prior sexual conduct, as well as evidence directly pertaining to the acts upon which the present prosecution is based, to be introduced or inquired about at the in camera hearing. The purpose of such hearing is to review the evidence to determine whether it is relevant for trial purposes. (Italics supplied.)

After giving due deference to the right of the accused to present his defense, the statute seeks to protect the victim from unnecessary humiliation at trial based on irrelevant and prejudicial, though probative, evidence. See Duncan v. State, 263 Ark. 242, 565 S.W. 2d 1 (1978); and Bobo and Forrest v. State, supra. The appellant certainly has no constitutional right to present irrelevant evidence at trial. Here, for example, the fact that the victim has two illegitimate children and an alleged reputation as a prostitute is not relevant to the central fact in issue; i.e., whether the alleged act of sexual intercourse actually occurred. The court also correctly ruled that the prosecutrix may be questioned on cross-examination concerning her prior sexual involvement with the appellant and that the appellant could testify at trial concerning his prior sexual involvement with the victim. Bobo and Forrest v. State, supra.

If the statute absolutely barred evidence of the victim’s prior sexual conduct, its constitutionality would be suspect in light of Davis v. Alaska, 415 U.S. 308 (1975). This it does not do. Since this evidence is admissible at trial upon the court’s determination that it is relevant to the fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature, we cannot say that the appellant’s due process rights are not fully protected.

We are also satisfied that application of the statute does not result in a violation of the accused’s Fifth Amendment right against self-incrimination. Appellant’s argument is that the in camera hearing aids the prosecution by allowing potential discovery of the strength and weakness of his defense. However, pursuant to the Rules of Crim. Proc., Rule 18.3 (Vol. 4A Repl. 1977), the appellant must reveal, upon the state’s request, the nature of any defense which he intends to establish at trial, and the names and addresses of the witnesses who will testify in support of these defenses. Therefore, at the in camera hearing, it appears that the appellant is not forced to reveal any more of his defense strategy than he is required to do under existing procedural rules. Further, similar “rape shield” statutes in other jurisdictions, attacked as here, have been declared constitutional. State v. Blue, 592 P. 2d 897 (Kans. 1979); Cameron v. State, 561 P. 2d 118 (Okla. 1977); Smith v. Commonwealth, 566 S.W. 2d 181 (Ky. App. 1978). Here the statute is a valid exercise of the legislature’s authority to shield the victim of a sexual offense from becoming, herself, the defendant.

Appellant’s defense to the rape charge was that no sexual intercourse occurred between them on the alleged occasion. He proffered evidence that the charge against him was made by the prosecutrix because of a fight they had as a result of his contracting a venereal disease from her. At the time of the fight, she threatened “she would get even with him”. Consequently, the present charge resulted. We cannot agree with the court’s exclusion of this proffered evidence. Certainly, upon sufficient proffer as here, the victim’s bias, prejudice or ulterior motive for filing the charge is relevant or germane to the question of whether the alleged act of sexual intercourse actually occurred and the probative value outweighs its inflammatory or prejudicial nature. See Milenkovic v. State, Wis. App., 272 N.W. 2d 320 (1978). There it was also said:

The offer of proof need not be stated with complete precision or in unnecessary detail but it should state an evidentiary hypothesis underpinned by a sufficient statement of facts to warrant the conclusion or inference that the trier of fact is urged to adopt[,] .... [and] it ought to enable a reviewing court to act with reasonable confidence that the evidentiary hypothesis can be sustained and is not merely an enthusiastic advocate’s overstated assumption.

Here appellant’s counsel was denied effective cróss-examination of a constitutional magnitude when he, after stating an evidentiary hypothesis underpinned by a sufficient statement of facts, was refused the right to reveal “possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case'at hand [, a sexual offense].” See State v. DeLawder, 344 A. 2d 446 (Md. App. 1975). Also see Weinstein’s Evidence § 607[03].

Affirmed as modified.

Harris, C.J., not participating.