author: Per Curiam.

text:
    Johnny R. BROWN v. STATE of Arkansas
    CR 95-644
    900 S.W.2d 954
    Supreme Court of Arkansas
    Opinion delivered July 3, 1995

      Howard M. Holthojf, for appellant.
    No response.
   Per Curiam.

Johnny R. Brown, by his attorney, has filed a motion for a rule on the clerk. His attorney, Howard M. Holthoff, states by motion that he timely tendered the transcript on its due date, June 7, 1995, and that thereafter, he was notified the transcript could not be filed because the notice of appeal was filed prior to the judgment. The notice of appeal was filed of record on November 7, 1994, at 11:50 a.m., while the judgment was entered of record November 7,1994, at 2:00 p.m. Thus, the notice of appeal was of no effect. Ark. R. App. P. 4; Woods v. State, 316 Ark. 705, 873 S.W.2d 562 (1994) (per curiam); Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992).

Attorney for appellant, by motion, admits responsibility for filing the notice of appeal prematurely. Consequently, we treat this motion as a motion for belated appeal. We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion pursuant to Ark. R. Crim. P. 36.9. J.B. Whitley v. State, 317 Ark. 647, 882 S.W.2d 670 (1994) (per curiam); see In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). Therefore, we grant the motion for belated appeal and direct that a copy of this opinion be forwarded to the Committee on Professional Conduct.


source: Caselaw Access Project

license: Public Domain

text:
    Ronald Allen FARMER v. STATE of Arkansas
    CR 94-1398
    902 S.W.2d 209
    Supreme Court of Arkansas
    Opinion delivered July 3, 1995

      Mathis & De Janes, by: William T Mathis, II, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Senior Appellate Advocate, for appellee.
   Per Curiam.

The appellant Ronald Allen Farmer was convicted of first degree battery by a jury and sentenced to ten years imprisonment and a $10,000 fine. The conviction was affirmed by the Arkansas Court of Appeals in an opinion not designated for publication. Farmer v. State, CACR 93-781 (June 1, 1994). The mandate was issued on June 21, 1994. On August 1, 1994, the appellant filed a petition for post-conviction relief alleging ineffective assistance of counsel. That petition was denied and the appellant brings this appeal.

To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process, that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668 (1984).

We affirm the trial court’s denial of post-conviction relief unless it is clearly against the preponderance of the evidence. Atchison v. State, 298 Ark. 344, 767 S.W.2d 312 (1989). Where the evidence is sufficient to support a ruling either way, it cannot be said that the trial court’s ruling was clearly against the preponderance of the evidence; the credibility of a witness is a question for the trier of fact in Rule 37 proceedings. Atchison v. State, 298 Ark. 344, 767 S.W.2d 312 (1989).

The appellant claims that the trial court erred in not finding his attorney ineffective when his attorney failed to ensure the presence of witnesses who could support his claim of self defense. The appellant’s conviction arose from a barroom fight. The bartender testified for the state that the appellant threw a beer pitcher at the victim, stomped on the victim’s head, and continued to beat him after he was unconscious. She testified that the appellant also lifted the victim’s arm and intended to stomp on it but the fight was stopped. The bartender conceded on cross-examination that she would not have seen it if the victim had hit the appellant first; she also stated that she did not see the whole fight. Paul Hill, a patron in the bar, testified that the appellant hit the victim in the head with the beer, “knocked him out,” and jumped up and down on his chest. Hill testified that he could not positively say that the victim did not hit the appellant first. Paul Hill’s wife, Marsha, testified that the appellant hit the victim in the head with a pitcher of beer.

The manager at the bar testified for the defense that the victim had been barred from the tavern because of disorderly conduct and that she had heard him called “Bone Crusher.” The appellant testified in his own behalf that the victim hit him first, causing the ensuing fight. He stated that the victim hit him in the bridge of the nose and knocked him off the bar stool. He testified that he thinks that the victim hit him with a cue ball. The appellant stated that the victim started towards him so he threw the pitcher of beer at him.

The defense apparently supplied the names of John Black and David Vanderford as witnesses. When the witnesses’ names were called on the date the trial was first set, March 10, 1993, David Vanderford was present but John Black was not present. The court ordered all witnesses to return for the trial the date of which was moved to March 18, 1993. On March 10, the defense attorney asked the judge to issue a contempt warning for John Black but the court pointed out that there was no return on Black. The defense attorney said that he would reissue the subpoena. On the date of the trial neither John Black nor David Vanderford were present or called as a witness. The appellant’s attorney did not ask for a continuance to secure the witnesses’ presence.

The appellant’s petition for post-conviction relief alleged, among other things, that his trial counsel was ineffective for failing to present any evidence to corroborate his claim of self-defense. He stated that David Vanderford and Johnny Black could have testified on his behalf. He conceded that Vanderford was also charged in the crime and is now a fugitive but averred that Black was available to testify and was not called. At the hearing on the petition for post-conviction relief, the appellant’s trial attorney testified that John Black was subpoenaed but that he did not ask for a continuance when Black failed to appear for trial. The trial attorney testified “... I believe Mr. Black was a cousin of [the appellant] and we felt reasonably certain that he would show up.” The trial attorney testified incorrectly that John Black had appeared for the earlier trial date but that he did not appear for the second trial date. The attorney stated, “but we felt that he was a cousin of the defendant and we seemed reasonably confident that he was going to be a witness all along.” The attorney testified that he did not have the subpoena reissued. He stated that he did not request a continuance because of Mr. Vanderford’s absence because “we felt that he was on the run because he had previous convictions and he would not be found and even if we got him here, I would anticipate that he would plead the Fifth Amendment.”

John Black testified at the Rule 37 hearing. He stated that he was not served with the subpoena. He testified that the victim reached across the bar and hit the appellant and that he would have testified to that. The appellant testified that David Vanderford was not a fugitive at the time of the trial and that he had appeared at the previous hearings. The appellant testified that Vanderford was not called because Vanderford’s public defender advised him not to testify. The appellant testified that his counsel never suggested going ahead and subpoenaing him. None of the subpoenas appear in the transcript but on March 10 the court docket reflects that “the defendant requested an order to serve John Black.”

The state argues correctly that the decision to call certain witnesses and reject other potential witnesses is largely a matter of trial strategy. Counsel must use his own best judgment to determine which witnesses will be beneficial to his client. Taggett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984). In this case, however, the appellant’s attorney failed to secure the testimony of the only witnesses available who could corroborate his client’s version of the facts. His “strategy” was to present John Black as a witness, but he failed to have Black served with a subpoena or to seek a continuance when he failed to appear, despite the fact that Black was apparently the only person who could testify in support of the self-defense claim.

The court’s order stated:

The trial defense counsel and the prosecuting attorney timely caused to be issued subpoenas for Johnny Black, who apparently is a relative of the defendant and resides in rural Montgomery county. Mr. Black was never served with either subpoena though apparently efforts were made by the defense attorney to obtain service. The defendant, who was free on pretrial bond, apparently did not assist in obtaining the whereabouts of Mr. Black prior to trial.

There is nothing in the record to support the statement that the defense attorney made efforts to obtain service. In light of the fact that corroboration of the appellant’s version of the facts was crucial to his allegation of self-defense, trial counsel was ineffective in failing to ask for a continuance when John Black did not appear on the morning of the appellant’s trial. The trial judge’s finding to the contrary is clearly against the preponderance of the evidence.

Reversed.


text:
    Albert Lewis HUGGINS v. STATE of Arkansas
    CR 94-564
    902 S.W.2d 212
    Supreme Court of Arkansas
    Opinion delivered July 3, 1995

      Addie M. Burks, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant, Albert Lewis Huggins, has appealed from a conviction of capital murder and theft. He contends the evidence was insufficient to support the convictions. Mr. Huggins moved for directed verdicts on both the murder and theft charges at the conclusion of the prosecution’s case. On behalf of the State, the Attorney General has responded that Mr. Huggins waived any issue of sufficiency of the evidence because he failed to renew his directed verdict motion at the conclusion of the case. See Ark. R. Crim. P. 36.21(b).

In his brief, the Attorney General states, “By presenting evidence after the State rested its case-in-chief, appellant waived any reliance on the motions he made at the close of the State’s case [citations omitted].” That is simply not a correct statement. Our review of the record shows that, although Mr. Huggins took the witness stand out of the jury’s presence to explain his decision whether to testify, he ultimately presented no evidence during the guilt or innocence phase of the trial. If a defendant presents no evidence after a directed verdict motion is made, further reliance on that motion is not waived. Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994).

The Attorney General’s error has left us with no brief on behalf of the State on the merits of this case involving a conviction of capital murder and theft in which the defendant received a sentence of life imprisonment without parole. In cases of doubt about the disposition of a criminal appeal on a procedural ground, the Attorney General has heretofore taken the precaution of arguing the merits of the case in addition to the procedural point. Had that been done in this case we would not be faced with this intolerable situation in which we must require the Attorney General to rebrief the case. That may well make it necessary for Mr. Huggins to submit a second reply brief to replace the one responding to the Attorney General’s original brief. The delay and inconvenience which will result are regrettable.

To facilitate our consideration of the merits of the appeal, we direct the Attorney General to prepare a supplemental brief. The Clerk will set a schedule for filing the supplemental brief on behalf of the State and for filing any supplemental reply brief Mr. Huggins may choose to submit.


text:
    Anthony Lynn TAYLOR v. STATE of Arkansas
    CR 95-597
    900 S.W.2d 546
    Supreme Court of Arkansas
    Opinion delivered July 3, 1995

      Tim Buckley, for appellant.
    No response.
   Per Curiam.

Anthony Lynn Taylor, by his attorney, Tim Buckley, has filed a motion for a rule on the clerk. His attorney admits by motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion is, therefore, granted.

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


author: Jack Holt, Jr., Chief Justice.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Dwight BEAVERS, Nan Beavers, and Carye Beavers
    95-32
    901 S.W.2d 13
    Supreme Court of Arkansas
    Opinion delivered July 10, 1995

      Boswell, Tucker & Brewster, by: W. Lee Tucker, for appellant.

      Tim A. Womack, Esq., for appellees.
   Jack Holt, Jr., Chief Justice.

This case involves the interpretation of Arkansas’s underinsured motorist statute. Appellee Carye Beavers, the daughter of appellees Dwight Beavers and Nan Beavers, was a passenger in her parents’ vehicle on January 1, 1991 when it was struck by an uninsured motorist. At the time of the accident, the Beavers’s vehicle was insured in a single policy issued by the appellant, State Farm Mutual Automobile Insurance Company (“State Farm”), under which the Beavers had paid separate premiums for uninsurance coverage up to $25,000, as well as underinsurance coverage up to a like amount.

After having their demand for both uninsured and underinsured coverage rejected, the Beavers filed suit against State Farm, which subsequently moved for partial summary judgment on the grounds that the Beavers were not entitled to underinsured motorist coverage, as the vehicle was struck by an uninsured motorist. The trial court denied the motion, ruling that Arkansas’s under-insurance motorist statute, codified at Ark. Code Ann. § 23-89-209 (1987), and the case law interpreting the statute, allowed underinsured as well as uninsured motorist coverage to apply, and due to the fact that the Beavers had paid separate premiums for both coverages, the uninsured coverage would exist up to the applicable limit in the event that Carye’s injuries exceeded $25,000, or the limit of the Beavers’s family uninsured coverage.

The case proceeded to trial, and, at the close of the Beavers’s case in chief, State Farm moved for directed verdict on the same grounds as previously asserted in its motion for partial summary judgment. The trial court denied the motion. State Farm presented no evidence, and the jury returned a verdict in favor of the Beavers against State Farm in the amount of $700,000. The trial court entered judgment against State Farm for its policy limits in the amount of $25,000 in uninsured motorist coverage, $25,000 in underinsured motorist coverage, a 12 percent penalty, or $6000, $15,000 in attorney’s fees, prejudgment interest calculated at 6 percent from the date of demand, and post-judgment interest of 8.5 percent.

On appeal, State Farm claims: (1) that the trial court erred as a matter of law in denying their motion for directed verdict on the issue of underinsured motorist coverage; and (2) that the trial court erred in awarding a penalty and attorney’s fees on the underinsured portion of the judgment. On cross appeal, the Beavers insist that the trial court erred in failing to award them a 12 percent penalty from the date of demand. We reverse and remand, as the trial court erred in refusing to direct a verdict in favor of State Farm on the issue of underinsured motorist coverage.

I. Underinsured and uninsured motorist coverage

The Beavers originally entered into a contract to insure their vehicle with State Farm on May 30, 1990, which provided for both uninsured motorist coverage and underinsured motorist coverage, for which the Beavers paid separate premiums. This contract was renewed on November 30, 1990, with coverage to extend until May 30, 1991.

Inasmuch as the trial court found that the Beavers were entitled to insurance coverage under both its underinsured and uninsured schedules, State Farm asserts as its first allegation of error that the trial court erred in failing to direct a verdict in its favor on the issue of underinsurance motorist coverage, as the vehicle in which Carye Beavers was a passenger on January 1, 1991, was struck by an uninsured, not an underinsured motorist.

In analyzing this case of first impression, we subscribe to the method of review suggested in a related law review article that “the result in almost any stacking problem is best determined by a simple rule: Read the Statute and Read the Policy!” Douglass and Telegadis, Stacking of Uninsured and Under-insured Motorist Vehicle Coverages, 24 U. Rich. L. Rev. 87 (Fall 1989). Accordingly, we examine both the Beavers’s policy and Arkansas’s underinsured motorist statute to reach our conclusions.

The policy purchased by the Beavers describes both an uninsured and an underinsured motor vehicle. An uninsured motor vehicle is defined in part as “a land motor vehicle . . . which is not insured or bonded for injury liability at the time of the accident.” Whereas, in contrast, an underinsured motor vehicle is defined as “a land motor vehicle . . . which is insured or bonded for bodily injury liability at the time of the accident; but the limits of liability for bodily injury are less than the amount needed to compensate the insured’s damages.” Moreover, the policy specifically states that an underinsured motor vehicle “does not include a land motor vehicle . . . defined as an uninsured motor vehicle in your policy.”

Professor Alan I. Widiss, in a recent treatise, discusses this issue as follows:

Many insurance policies set forth underinsured motorist insurance and uninsured motorist insurance as separate coverages. In some instances, an insured who sustained damages as a result of an accident with an uninsured motorist has sought the coverage afforded by the underinsured motorist insurance as well as the uninsured motorist insurance benefits. Although there are not many appellate court precedents addressing this issue, in virtually all circumstances an injured person will not be able to receive both uninsured motorist benefits and underinsured motorist benefits. Simply put, as defined in the standard coverage terms and as contemplated by legislative requirements, uninsured and underinsured are separate, distinct and mutually exclusive coverages in regard to any single motor vehicle which has been negligently operated.

Alan I. Widiss, Uninsured and Underinsured Motorist Insurance, § 35.20, at 195 (2d ed. 1992) (Footnotes omitted). As recognized by Professor Widiss, virtually all states who have addressed this issue have concluded that duplicative recoveries are not permitted. See Evenchik v. State Farm Ins. Co., 679 P.2d 99 (Ariz. App. 1984); National Union Fire Ins. v. Ferreira, 790 P.2d 910 (Haw. 1990); Berg v. Western Nat. Mut. Ins. Co., 359 N.W.2d 726 (Minn. App. 1984); Monti v. United Services Auto Ass’n, 423 S.E.2d 530 (N.C.App. 1992); Fireman’s Ins. Co. v. State Farm Mut., 370 S.E.2d 85 (S.C. 1988). See also Jenkins v. Lanigan, 396 S.E.2d 28 (Ga. App. 1990). We have examined our cases for precedent and find that we have not delved into this particular issue; thus, we give weight to this backdrop of authority furnished by Widiss.

As cited by both parties in the present appeal, this court, has, however, recognized the difference between uninsured and underinsured motorist coverage in Clampit v. State Farm Mut. Auto. Ins. Co., 309 Ark. 107, 828 S.W.2d 593 (1992), as follows:

We concede the distinction between ««insured and underi nsured motorist coverage. Uninsured motorist coverage applies when a tortfeasor either has no insurance or has less than the amount required by law. Coverage is designed to guarantee a minimum recovery equal to that amount. Underi nsured coverage applies when the tortfeasor has at least the amount of insurance required by law, but not enough to fully compensate the victim. This coverage is designed to provide compensation to the extent of the injury, subject to the policy limit. See Kluiter v. State Farm Mutual Automobile Insurance, 417 N.W.2d 74 (Iowa 1987).
Conceivably, there are situations where the difference between uninsured and underinsured motorist coverage could affect recovery . . .

Stated another way, “it is practical and pure common sense that underinsurance should not [apply] until it is determined whether the insured is in fact underinsured.” State Farm Mut. Auto Ins. Co. v. Thomas, 316 Ark. 345, 871 S.W.2d 571 (1994).

As mentioned, the policy in question specifically provides that an uninsured motor vehicle “does not include a land motor vehicle . . . defined as an underinsured motor vehicle in your policy.” Granted, the fact that the exclusion of an uninsured motor vehicle from the definition of an underinsured motor vehicle may not, standing alone, pass muster in light of the strong public policy against exclusion of coverage. See McGarrah v. Southwestern Glass Co., 41 Ark. App. 215, 852 S.W.2d 328 (1993); Arkansas Farm Bureau Ins. Federation v. Ryman, 309 Ark. 283, 831 S.W.2d 133 (1992); Ark. Blue Cross & Blue Shield v. Long, 303 Ark. 116, 792 S.W.2d 602 (1990). Yet, in following the simple rule of considering this policy’s language, including its definition and exclusions, together with the language of the statute, which clearly refers to the tortfeasor’s insurance coverage, we must conclude that underinsured coverage does not apply when the insured is struck by an uninsured motorist.

At the time of the accident, the Arkansas underinsurance motorist statute, codified at Ark. Code Ann. § 23-89-209 (1987), provided in pertinent part as follows:

(a) . . . Coverage of the insured pursuant to underinsured motorist coverage shall not be reduced by the tortfeasor’s insurance coverage, except to the extent that the injured party would receive compensation in excess of his damages. (Emphasis added.)

As State Farm suggests in its brief, the underinsured motorist statute contemplated that the tortfeasor would in fact have insurance coverage, which would therefore exclude a tortfeasor who is uninsured. Later, Act 1180 of 1993, effective for new policies issued after July 1, 1993, and to existing policies from and after their first renewal on or after January 1, 1994, changed § 23-89-209, expounding on the definition of underinsured motorist coverage:

(a)(3) The coverage shall enable the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injuries to or death of an insured, which the insured is legally entitled to recover from the owner or operator of another motor vehicle, whenever the liability insurance limits of such other owner or operator are less than the amount of damages incurred by the insured.

(Emphasis added.) We have long stated that the basic rule of statutory construction is to give effect to the intent of the legislature, and when a statute is clear, it is given its plain meaning. Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995). We can look to changes to statutes made by subsequent amendments to determine legislative intent. See American Casualty Co. v. Mason, 312 Ark. 166, 848 S.W.2d 392 (1993). Obviously, both the statute in effect at the time of the accident and its 1993 amendment refer to the “the tortfeasor’s insurance coverage” and the insurance limits “of such other owner or operator,” respectively. In short, the statute is clear that underinsured motorist coverage is triggered when the tortfeasor’s insurance, not that of the insured, is less than the amount of damages incurred by the insured.

Under these circumstances, we hold that the trial court erred in refusing to direct a verdict in State Farm’s favor on the issue of the application of underinsured motorist coverage on the grounds that the policy excluded the definition of an uninsured motor vehicle from an underinsured vehicle, and, in particular, on the plain meaning of the statute in effect at the time of the accident, which clearly referred to “the tortfeasor’s insurance coverage.”

II. Penalty and attorney’s fee

For its second allegation of error, State Farm asserts that the trial court erred in awarding a penalty and attorney’s fee on the underinsured portion of the judgment, which is an extension of State Farm’s first point on appeal.

Arkansas Code Annotated § 23-89-208(f) provides for payment of a penalty and attorneys’ fees when the insurer is ordered to pay overdue benefits:

In the event the insurer is required to pay the overdue benefits, the insurer shall, in addition to the benefits received, be required to pay the reasonable attorneys’ fees incurred by the other party, plus twelve percent (12%) penalty, plus interest thereon from the date these sums become overdue.

As the penalty and attorney’s fees were calculated on the basis of both uninsured and underinsured coverage, we remand so that the 12-percent penalty and attorney’s fees can be recalculated commensurate with the recovery of uninsured benefits only.

III. 12-percent penalty

On cross-appeal, the Beavers assert that the trial court erred in failing to award them a 12-percent penalty per annum from the date of demand pursuant to Ark. Code Ann. § 23-79-208(a) (Repl. 1992). The provision provides, in pertinent part, as follows:

In all cases, where loss occurs and the . . . insurance company . . . liable therefore shall fail to pay the losses within the time specified in the policy, after demand made therefor, the person, firm, corporation, or association shall be liable to pay the holder of the policy or his assigns, in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorneys’ fees for the prosecution and collection of the loss.

While the Beavers argue that the 12-percent penalty should have been awarded per annum from March 14, 1991, the date they filed their complaint, they concede in their brief that the statute itself speaks of a flat 12-percent damages upon on the amount of the loss, and cite no authority in support of their position that this penalty be awarded per annum. We have stated that, where an appellant cites no authority, nor makes a convincing argument, and where it is not apparent without further research that the point is well taken, we will affirm the decision of the trial court. Quinney v. Pittman, 320 Ark. 177, 895 S.W.2d 538 (1995).

Reversed and remanded on direct appeal and affirmed on cross-appeal.

Newbern, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Jeffrey H. CORDELL and Wife, Susan Cordell v. Kenneth R. NADEAU, and John Spotts Pharm D, d/b/a Spotts Pharmacy
    94-1207
    900 S.W.2d 556
    Supreme Court of Arkansas
    Opinion delivered July 10, 1995

      Taylor, Halliburton, Ledbetter & Caldwell, by: Kathleen L. Caldwell; and Gerber Law Offices, by: Cynthia Arnold Wilson, for appellants.

      Womack, Landis, Phelps, McNeill & McDaniel, by: Lucinda McDaniel, for appellee.

      Arnold, Grobmyer & Haley, by: Jacob Sharp, Jr., and David H. Pennington, for cross-appellant.
   Robert H. Dudley, Justice.

Jeffrey Cordell and his wife Susan filed suit on July 17, 1992, against Kenneth Nadeau, doctor of medicine, and John Spotts, doctor of pharmacy, in which they alleged that Nadeau and Spotts were guilty of negligence for improperly prescribing and filling prescriptions for Xanax and that Jeffrey Cordell had become addicted to the drug. They alleged that the prescriptions were authorized and filled from January 28, 1988, through July 20, 1990. The latter date, July 20, 1990, was within two years of the date suit was filed, July 17, 1992.

Dr. Nadeau filed a motion for summary judgment with an affidavit stating that, in fact, he had not treated Cordell since September 13, 1989, and as a result the statute of limitations for medical malpractice had run. See Ark. Code Ann. § 16-114-203 (1987). Jeffrey and Susan Cordell and pharmacist Spotts filed responses along with counter-affidavits stating that Dr. Nadeau wrote prescriptions or authorized refills through July 20, 1990, the date alleged in the complaint.

The trial court was not made aware that the Cordells and Spotts had filed counter-affidavits and, because of the “innocent but erroneous assertion” that no counter-affidavits had been filed, granted summary judgment on August 4, 1993. After various motions, the trial court, on August 26, 1994, declared that the order for partial summary judgment was a final and appealable order under ARCP Rule 54(b). The Cordells appeal, and John Spotts cross-appeals.

We first address Dr. Nadeau’s contention that this appeal should be dismissed under ARCP Rule 60(b) because a trial court loses jurisdiction to correct a mistake or to prevent the miscarriage of justice after ninety days, and the order allowing appeal pursuant to Rule 54(b) was entered more than ninety days after the partial summary judgment was entered.

We have frequently held that a trial court loses jurisdiction to correct an error or mistake or to prevent the miscarriage of justice under Rule 60(b) ninety days after the entry of a judgment, decree, or order. See, e.g., Griggs v. Cook, 315 Ark. 74, 864 S.W.2d 832 (1993). In this case, however, the trial judge apparently realized that he could not set aside or modify the summary judgment because ninety days had passed since the date of entry of that order. As a result, the trial court ruled that the partial summary judgment, as originally entered, should be made an appealable order under Rule 54(b). Rule 54(b) expressly provides for the procedure as follows:

When more than one claim for relief is presented in an action,... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

The rule states that an order dismissing fewer than all of multiple parties can be revised at any time to provide that it is a final order for appeal purposes. Thus, we have jurisdiction and accept the appeal.

We now turn to the merits of the appeal. Appellants, the Cordells, and cross-appellant, Spotts, contend that the summary judgment should be set aside because material issues of fact remain to be tried. The argument is well taken. The trial court stated in the Rule 54(b) order that it granted the summary judgment under the “unusual circumstances” of the “innocent but erroneous assertion” by Dr. Nadeau’s counsel that Spotts had failed to comply with an earlier order that he file a response to the motion for summary judgment. Consequently, the trial court erroneously assumed that neither the Cordells nor Spotts had met proof with proof and granted the motion. The assumption was in error as there are material issues of fact remaining to be tried. Thus we reverse and remand for trial of those issues.

Appellants and cross-appellant, citing the “continuing treatment” case of Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988), ask us to decide whether the continuing treatment in this case would extend the medical malpractice statute of limitations. We decline to answer the question. The issue has not yet been presented to, or determined by, the trial court in light of the disputed facts, and we will not give an advisory opinion. City of West Memphis v. Burrows, 319 Ark. 611, 893 S.W.2d 323 (1995).

Reversed and remanded.

Brown, J., not participating.


text:
    LITTLE ROCK WASTEWATER UTILITY v. LARRY MOYER TRUCKING, INC.
    94-1455
    902 S.W.2d 760
    Supreme Court of Arkansas
    Opinion delivered July 10, 1995
    [Rehearing denied September 11, 1995.]

      Don F. Hamilton, for appellant.

      Richard C. Downing, for appellee.

      Roaf, J., not participating.

   Robert H. Dudley, Justice.

The Arkansas State Highway Commission decided that Baseline Road in Pulaski County should be widened from two lanes to five lanes, and it knew that appellant, Little Rock Wastewater Utility, owned sewer lines that were located where the construction would take place. In anticipation of the earthwork and construction involved in widening the road, the Commission, acting through the Arkansas Highway and Transportation Department, entered into a contract with the Little Rock Wastewater Utility to relocate Utility’s sewer lines. In this agreement, dated August 12, 1988, and styled “The Relocation Agreement,” Utility was to relocate its facilities when notified to do so by the Department. Upon notice, it was to act with diligence, begin the relocation work within thirty days, complete the work within 150 days thereafter “in a manner as will result in no avoidable interference or delay in the construction work,” and adjust the sewer facilities as required by the construction work. After the contract was executed, Utility was given notice and started its work. By the spring of 1991, Utility had completed most of its relocation work. On March 5, 1991, the Department entered into a separate contract with Southern Pavers, Inc. to widen the roadway and surface the road. That same day, Southern Pavers, the prime contractor, entered into a subcontract with Larry Moyer Trucking, Inc. to clear and grub for widening the road and to install drainage and related facilities. The subcontractor, appellee Moyer Trucking, started its work.

In the performance of its subcontract with Southern Pavers, Moyer Trucking experienced delays. It contends the delays were caused by Utility’s failure to perform its contract with the Department and that it suffered damages as a result of these delays. Moyer Trucking filed this suit in which it alleged it was a third-party beneficiary of the Relocation Agreement and it suffered damages as a result of Utility’s failure to perform that agreement satisfactorily. Upon trial, a jury returned a $62,563.49 verdict in Moyer Trucking’s favor. Utility appeals, and Moyer Trucking cross-appeals. We affirm on direct appeal and reverse and remand on cross-appeal.

Utility’s first point on direct appeal is that there is no legal basis for Moyer Trucking’s claim that it was a third-party beneficiary of the relocation contract between the Department and Utility. The presumption is that parties contract only for themselves, and a contract will not be construed as having been made for the benefit of third parties unless it clearly appears that such was the intention of the parties. Howell v. Worth James Constr. Co., 259 Ark. 627, 535 S.W.2d 826 (1976). However, a contract is actionable by a third party where there is substantial evidence of a clear intention to benefit that third party. Id. at 629, 535 S.W.2d at 828. It is not necessary that the person be named in the contract, and if he is otherwise sufficiently described or designated, he may be one of a class of persons if the class is sufficiently described or designated. Id. at 630, 535 S.W.2d at 829.

Both Utility and Moyer Trucking agree that Howell is the leading case on third-party beneficiary contracts in this State, but each contends the case supports its argument in this appeal. In Howell, the appellee contractor, Worth James Construction Co., constructed water lines for the appellant subdivision, Tall Timber Development Corp. Id. at 638, 535 S.W.2d at 827. Appellant subdivision contracted separately with co-appellant, Howell, for co-appellant to do trenching. Id. Howell damaged the water lines during trenching, and the appellee utility contractor, Worth James, sued for damages based upon a provision in the contract between the subdivision and the trenching contractor. Id., 535 S.W.2d at 827-28. The appellant subdivision argued that the contract sued upon was for the benefit of the subdivision and the trenching contractor only. Id. at 629, 535 S.W.2d at 828. We held that a provision in the contract by which the subdivision retained forty percent of the contract price as a bond for the trenching contractor evidenced its intent to be a surety for it and that the utility contractor was an intended beneficiary. Id. at 630, 535 S.W.2d at 829.

In the case at bar, Utility argues that, since there was no retainage provision in the relocation contract, this case does not come within the ambit of Howell. The argument is not persuasive. It is not necessary that there be a retainage provision in order for there to be third-party beneficiary of a contract. Other factors may demonstrate that a third party was in the class of persons intended to be a beneficiary of the contract.

Here, the language of the Relocation Agreement shows that the relocation work to be performed by Utility was to be practically completed before the earthwork and surfacing contract would be let by the Department. In the pertinent parts, the Relocation Agreement states:

[A]s part of the necessary work of such improvements [Utility] must relocate certain of its existing utility facilities and/or secure “Department’s” approval of the construction and location of certain proposed facilities on the right of way of said highway project. . . .
* * *
The proposed highway improvement necessitates the adjustment, relocation, and/or “Department’s” approval of the proposed locations of certain facilities of [Utility] as described in the following description of work and such adjustment, relocation, or construction being shown in detail in [Utility’s] plans, sketches, estimate of costs, and specifications (when applicable) which are attached hereto and made a part hereof ....
* * *
[Utility] shall not begin the adjustment work until authorized by “Department” and shall exercise due diligence to begin work within 30 calendar days and to complete such work within 150 calendar days thereafter and in a manner as will result in no avoidable interference or delay to the “Department’s” construction work or in the adjustment of [Utility’s] facilities.

(Emphasis added.)

Larry Moyer, the president of appellee Moyer Trucking, testified that, when making Moyer Trucking’s bid for the sub-contract, he relied on the fact that Utility essentially had completed its work and would coordinate the remaining work with the Department while construction on the roadway was in progress. Randy McNulty, president of Southern Pavers, testified that he relied on this fact when he made the primary bid and that he bid less because the relocation of the utilities would be almost complete, there would be less interference, and it would cost less to complete the construction job. Billy Morgan, superintendent for Southern Pavers, testified that he understood that the utility moving had been done before the job was started, but, as it turned out, the moving had not been done, and the work done by Moyer Trucking was significantly impaired.

In determining whether Moyer Trucking was in the class to be benefitted by the contract, the reasoning underlying cases from other jurisdictions is helpful. In Moore Constr. Co. v. Clarksville Dep’t of Elec., 707 S.W.2d 1 (Tenn. App. 1985), the Tennessee Court of Appeals considered the question of whether a contractor can be an intended beneficiary of a construction contract between an owner and another prime contractor for work being performed as part of the same construction project. Id. at 10. It held that unless the construction contracts involved clearly provide otherwise, prime contractors on construction projects involving multiple prime contractors will be considered to be intended or third-party beneficiaries of the contracts between the project’s owner and other prime contractors. Id. The Tennessee court relied in part on a New Jersey case, Broadway Maintenance Corp. v. Rutgers, 447 A.2d 906 (N.J. 1982), in which the New Jersey Supreme Court said that when parties conceived that the prime contractors would benefit from the performance of their fellow contractors, when the project could not have been finished without each contractor meeting its respective obligations, and when the obligations of others induced each contractor to undertake its job at the agreed price, the contractors could recover from each other as third-party beneficiaries of the contracts between them and the owner. Rutgers, 447 A.2d at 910.

Here, Utility agreed to move the sewer lines so they would not interfere with the construction work that the Department was to later undertake. Then the Department contracted with Southern Pavers, which in turn subcontracted with Moyer Trucking to do the construction work. Thus, the trial court correctly refused to grant a directed verdict in favor of Utility and correctly allowed the third-party beneficiary issue to be submitted to the jury.

Under this same point of appeal Utility argues that Moyer Trucking was not an intended beneficiary of the Relocation Agreement because third-party beneficiary status was limited to the prime contractor, Southern Pavers. The trial court correctly held that the party that did the actual work was intended to be one of the parties to benefit from the Relocation Agreement. The reasoning in our case of Freer v. J.G. Putman Funeral Home, Inc., 195 Ark. 307, 111 S.W.2d 463 (1937) is applicable. In that case, appellant contracted to pay the funeral expense of the deceased, but argued, in part, that he was not obligated to pay a funeral home with which he had not contracted. Id. at 311, 111 S.W.2d at 465. We upheld the appellant’s obligation to pay the funeral home, indicating that, because Freer had agreed to pay for the services, it did not matter who performed the services. We said, “[T]here was no condition under which it could be of more expense or more burdensome than if [Freer] had made the selection himself, independent of others who were more interested in that regard.” Id. Similarly, it does not matter that a subcontractor to the general contractor did the actual work that was contemplated by the contract.

In its second point on direct appeal, Utility argues that Moyer Trucking is barred from recovering as a third-party beneficiary by a “no damage” provision in the specifications that apply to the construction contract between Southern Pavers and the Department. The material part of the provision is as follows:

In general, the contract will indicate various utility items, certain of which are to be relocated or adjusted by the utility owner and others which are to be relocated or adjusted by the Contractor. The Department will notify all known utility companies, all known pipe line owners, or other known parties affected, and endeavor to have all necessary adjustments of the public or private utility fixtures, pipe lines, and other appurtenances within or adjacent to the limits of construction made as soon as practicable.
Water lines, gas lines, wire lines, service connections, water and gas meter boxes, water and gas valve boxes, standards, cableways, signals, and all other light utility appurtenances within the limits of the proposed construction which are to be relocated or adjusted are to be moved by the owners, except as otherwise provided for in the Special Provisions or as noted on the plans.
The Contractor shall consider in the bid of the permanent and temporary utility facilities and appurtenances in their present, relocated, or proposed positions. No additional monetary compensation will be allowed for any delays, inconveniences, or damages sustained due to any interference from, the utilities or appurtenances or from the operations of relocating them.

(Emphasis added.)

Courts give only a restrained approval to “no damage” clauses because of their harsh effect. While such clauses are not void as against public policy and will be enforced so long as the basic requirements for a valid contract are met, the courts accord such clauses a strict construction. Maurice T. Brunner, Annotation, Validity and Construction of “No Damage” Clause With Respect to Delay in Building or Construction Contract, 74 A.L.R.3d 187, 212 (1976). In so construing the clause in this case, we construe it to mean that the Department was not required to pay any additional monetary compensation to the contractor for delays or damages that resulted from interference by Utility. This result is mandated by two factors. First, the provision is only contained in the construction contract between the Department and Southern Pavers. It is not contained in Utility’s contract. Obviously, then, the Department included the provision in its contract with Southern Pavers to prevent it from being liable for extra compensation to Southern Pavers. Second, a fair reading of the entire provision shows that it was intended for the benefit of the Department only.

Utility’s third point on direct appeal is that there was no substantial evidence to support the jury’s award of damages in the amount of $62,563.49. We view the evidence in the light most favorable to the appellee, Page v. Boyd-Bilt, Inc., 246 Ark. 352, 438 S.W.2d 307 (1966), and affirm if that evidence is substantial. The evidence in this case was substantial. Larry Moyer, president of Moyer Trucking, testified that he kept a diary of delays on the job. His diary reflects seventeen incidents from March 21, 1991, to September 24, 1991, in which sewer lines or water lines were broken or hit, and the time lost from each incident ranged from three hours to two days. He provided an invoice and testified about the hourly rate for the extra work and expense caused by the delays. The total of the invoice was $62,563.49, which was the amount awarded by the jury. Moyer explained the charges for each delay. Billy Morgan, superintendent for Southern Pavers, testified that he personally observed the traffic congestion and the interruption. In addition, the diary of James Sale, a foreman for Moyer Trucking, showed the delays and the causes.

In its final argument Utility contends that the trial court erred in charging the jury about the measure of damages because (1) there was no competent evidence to support giving the instruction and (2) the instruction incorrectly stated the elements of damage. We have already reviewed the evidence, and there is no need to repeat it in addressing this point of appeal. In addition to questioning the sufficiency of that evidence, Utility argues that the damages were speculative.

When a party seeks to recover anticipated profits under a contract, he must present a reasonably complete set of figures to the jury and should not leave the jury to speculate as to whether there could have been any profits. American Fidelity Fire Ins. Co. v. Kennedy Bros. Constr. Co., Inc., 282 Ark. 545, 670 S.W.2d 798 (1984). Lost profits must be proven by evidence showing that it was reasonably certain the profits would have been made had the other party carried out its contract. Id. at 546, 670 S.W.2d at 799; Reed v. Williams, 247 Ark. 314, 775 S.W.2d 90 (1969). Such proof is speculative when based upon such factors as projected sales when there are too many variables to make an accurate projection. See Sumlin v. Woodson, 211 Ark. 214, 199 S.W.2d 936 (1947). In Kennedy Bros. Constr. Co., we upheld an award of profits when the appellee lost a bid from the U.S. Army Corps of Engineers because of a faulty surety bond. Kennedy Bros. Const. Co., 282 Ark. at 546, 670 S.W.2d at 799. The figures presented to the jury were based upon the cost of the job if it had been completed within the contract time. The work was not done because the bid was lost; therefore, expert testimony was used to estimate the figures, and we held the damages were reasonably accurate. Id. at 547, 670 S.W.2d at 800. The loss of profit in the case at bar was based upon work already completed, and this figure was accurate enough to be submitted to a jury.

In Utility’s last part of this argument, it argues, without any citation of authority and actually without any real argument, that the instruction incorrectly stated the elements of damage. We have often said that assignments of error unsupported by convincing argument or authority will not be considered on appeal, unless it is apparent without further research that they are well taken. Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994).

On cross-appeal Moyer Trucking contends that the trial court erred in refusing to award it an attorney’s fee. The trial court denied Moyer Trucking’s request for an attorney’s fee but gave no reason. Moyer Trucking filed a post-trial motion for reconsideration of an attorney’s fee. The trial court did not rule on the motion, and it was deemed denied after thirty days.

Section 16-22-308 of the Arkansas Code Annotated allows the award of attorney’s fees for a breach of contract, but the decision whether to award such a fee is discretionary with the court. Chrisco v. Sun Indus., 304 Ark. 227, 800 S.W.2d 717 (1990). The trial court’s decision will not be set aside absent abuse of discretion. Id. at 230, 800 S.W.2d at 719. However, a clearly erroneous interpretation or application of a law or rule will constitute a manifest abuse of discretion. See Crowder v. Flippo, 263 Ark. 433, 565 S.W.2d 138 (1978). When applying Rule 11 of the Arkansas Rules of Civil Procedure, another provision for attorney’s fees, we have remanded for reconsideration when the trial court’s order gives no explanation that can be founded in the proper application of the law. Whetstone v. Chadduck, 316 Ark. 330, 871 S.W.2d 583 (1994). Here, the court did not give an explanation, and we do not know whether the ruling was erroneously founded in law.

A party may recover for damages from breach of contract when that party is a third-party beneficiary of the contract. Howell, 259 Ark. at 629, 535 S.W.2d at 828. It follows that a third-party beneficiary may recover attorney’s fees under the statute that allows such fees for breach of contract. Since we do not know the reason the trial court declined to award attorney’s fees, we remand for the trial court to consider whether to make such an award.

Affirmed on direct appeal; reversed and remanded on cross-appeal.

Roaf, J., not participating.


text:
    POTLATCH CORPORATION v. MISSOURI PACIFIC RAILROAD COMPANY
    94-910
    902 S.W.2d 217
    Supreme Court of Arkansas
    Opinion delivered July 10, 1995

      Williams & Anderson, by: John E. Tull, III, Philip S. Anderson and Leon Holmes, for appellant.

      Ramsay, Bridgforth, Harrelson & Staring, by: Phillip A. Raley and William M. Bridgforth, for appellee.
   Robert H. Dudley, Justice.

Missouri Pacific Railroad Co. filed a suit against Potlatch Corporation for negligence and breach of contract. The trial on the merits lasted six days. At the close of plaintiff’s case, the trial court denied defendant Potlatch’s motion for a directed verdict. At the close of the defendant’s case, defendant renewed its motion for a directed verdict. MoPac moved for a plaintiff’s directed verdict. The trial court denied both motions. After rebuttal each party moved for a directed verdict. The trial court again denied both motions. The jury returned a defendant’s verdict. The trial court later entered a judgment notwithstanding the verdict and awarded compensatory damages of $2,350,000 to plaintiff plus attorney’s fees in the amount of $25,000. We reverse and reinstate the jury verdict.

The procedure in this case was unusual, and for a clear understanding, we set out that procedure in detail along with the standard of review. The trial court granted a judgment notwithstanding the verdict in favor of the plaintiff. A motion for a directed verdict is a condition precedent to a motion for a judgment notwithstanding the verdict. ARCP Rule 50(b); Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993). Technically, a motion for a judgment notwithstanding the verdict is just a renewal of the motion for a directed verdict. Id. at 323, 867 S.W.2d at 448. In this case the judgment notwithstanding the verdict was a renewal of the motion for a directed verdict by the party having the burden of proof, plaintiff MoPac.

Absent rare circumstances, we do not affirm the grant of a directed verdict, or a subsequent motion for a judgment notwithstanding the verdict, in favor of the party with the burden of proof in a negligence case. The reasoning is sound. When the complaint is denied in the answer, the plaintiff in a negligence action has the burden of proving negligence, proximate cause, and damages. The defendant is entitled to have the jury pass on the credibility of the plaintiff’s evidence even if the defendant offers no evidence. Under the Arkansas Constitution, the trial court is prohibited from telling the jurors that they are to believe the plaintiff’s witnesses. Ark. Const, art. 2, § 7. The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight and value of the evidence, and may believe or disbelieve the testimony of one or all of the plaintiff’s witnesses, even though the evidence is uncontradicted and unimpeached. Barger v. Farrell, 289 Ark. 252, 711 S.W.2d 773 (1986); Morton v. American Medical Int’l, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985); Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665 (1962). As a result, we have said that no matter how strong the evidence of the party having the burden of proof in a negligence case, “that party is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise.” Young v. Johnson, 311 Ark. 551, 555 S.W.2d 510 (1993) (emphasis added); (quoting United States Fire Ins. Co. v. Milner Hotels, 253 F.2d 542, 547 (8th Cir. 1958)); Morton, 286 Ark. at 90, 689 S.W.2d at 537; Spink, 235 Ark. at 922, 362 S.W.2d at 667.

In 1985, we wrote that we were not aware of any Arkansas case in which a verdict for the party not having the burden of proof was set aside in a negligence case solely because it was not supported by substantial evidence. Morton, 286 Ark. at 90, 689 S.W.2d at 536. The statement still holds true although there is a case that deserves mention. In Young v. Johnson, 311 Ark. 551, 555 S.W.2d 510 (1993), the defendant filed a counterclaim against the plaintiff. The plaintiff moved for a directed verdict on the defendant’s counterclaim. The defendant was the party with the burden of proof on the counterclaim. The trial court denied the motion. We reversed because the defendant did not meet the burden with substantial evidence. In the opinion we noted that we are “loath” to affirm a directed verdict in favor of the party who has the burden of proof. Young, 311 Ark. at 555, 845 S.W.2d at 513.

In summary, we affirm the grant of a directed verdict or the grant of a judgment notwithstanding the verdict in favor of the party having the burden of proof only when “there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise.” United States Fire Ins. Co., 253 F.2d at 547.

In the case at bar, both parties have misstated the above standard and have argued this case using the standard applicable when the party that does not have the burden of proof moves for a directed verdict, which is whether there is substantial evidence to support a verdict. We address the points of appeal as they are argued by the parties because, in this case, it makes no difference since the party that did not have a burden of proof, defendant Potlatch, put on a substantial amount of evidence which supported the jury’s verdict.

We now turn to the facts of this case. In the early 1960’s, Potlatch began making plans to build a pulp and paper mill at Cypress Bend on the Mississippi River in Desha County. In 1974, it started construction of the mill and MoPac asked to provide rail service. The principal raw materials utilized at the mill are wood-chips which are shipped from another Potlatch facility at Warren. MoPac agreed to provide sufficient numbers of woodchip cars for Potlatch to continually operate the Cypress Bend facility. In 1977, MoPac and Potlatch executed an Industrial Track Agreement.

After the Agreement was entered, MoPac began delivering loaded chip cars to the mill every morning. There are three sets of tracks in the mill yard that are relevant to this suit. The first is the loaded chip track, the second is the dumper track, and the third is the empty chip track. Every morning MoPac delivers the loaded chip cars and leaves them standing on the loaded chip track. A Potlatch engine then transports the cars to a rotary dumper, which rotates each car upside down and dumps the contents down onto a conveyor system which conveys the chips into the mill. The rotary dumper then turns the car upright, and immediately afterwards a Potlatch switch engine pushes the unloaded car out of the dumper and onto the track. As the empty car moves away from the dumper, gravity causes it to travel down a declining track for a designed distance. It then begins to go up an incline until stopped by gravity, at which point it begins to roll back downhill. As it rolls back downhill an automatic switch causes it to move onto the empty chip track. The empty cars come to a stop on the empty chip track and are subsequently removed by the same MoPac crew that delivered the load of chips earlier that day.

On January 28, 1982, Clarence Higley, an employee of plaintiff MoPac, was severely injured while working on the empty car track. His arm was caught between two railroad cars, and eventually his arm had to be surgically amputated. On the day of the accident, Higley’s MoPac crew left the loaded chip cars on the loaded chip track and then proceeded to pick up the empty cars sitting on the empty car track. A MoPac employee was coupling the empty cars by pushing them into one another with the MoPac engine. Higley saw that two cars failed to couple and walked to those cars to manually couple them. As he got between the cars, they moved and he was pinned between them. He testified that the movement of the car came from the direction of MoPac’s engine and not from the direction of the dumper facility. Evidence showed that the Potlatch engine does not operate on the empty chip track where the injury occurred.

Higley filed a Federal Employers’ Liability Action suit against MoPac in federal district court, was awarded a judgment of $2,371,000, and eventually settled with MoPac for $2,350,000. Mopac asked Potlatch for indemnity under the Industrial Track Agreement. Potlatch concluded that the accident was not covered by the indemnity agreement and declined to defend the suit. After Higley obtained the $2,350,000 FELA judgment against MoPac, it filed this indemnity action against Potlatch. The case was tried to a jury in circuit court, and the jury found for Pot-latch. MoPac moved for judgment notwithstanding the verdict, and in the alternative, a new trial. The trial court granted a judgment notwithstanding the verdict.

In granting the judgment notwithstanding the verdict, the trial court erroneously stated that Potlatch’s engineer was operating Potlatch’s engine at the time Higley was injured. To the contrary, all of the evidence was that MoPac’s engineer was operating MoPac’s engine and Potlatch’s engine was not being operated. The trial court’s oral findings of fact were incorporated into the judgment notwithstanding the verdict.

In addition, there was evidence that the Potlatch rotary dumper crew was not negligent in the manner in which they opened the car couplers on the day of the accident, and there was evidence that Potlatch was not negligent in the design of the yard and tracks. Therefore, even using the standard the parties have advanced, there was substantial evidence to support the jury’s finding that Potlatch was not guilty of negligence. Under the correct standard of review, we would hold that the evidence did not clearly and unmistakably show that MoPac, the party with the burden of proof, was entitled to have facts declared sufficient as a matter of law that Potlatch was guilty of negligence. Thus, the trial court erred in granting the judgment notwithstanding the verdict on the negligence claim.

We now turn to the assignments that the trial court erred in granting a judgment notwithstanding the verdict because Potlatch breached the contract in refusing to indemnify MoPac. Agreements to indemnify an indemnitee against its own negligence are generally disfavored, closely scrutinized, strictly construed against the indemnitee and in favor of the indemnitor, and will not be upheld unless expressed in such clear and unequivocal terms that no other meaning can be ascribed. However, strict construction need not be applied in interpretation of indemnification agreements entered into by business entities in the context of free and understanding negotiation. Nabholz Constr. Corp. v. Graham, 319 Ark. 396, 892 S.W.2d 456 (1995); Arkansas Kraft Corp. v. Boyd Sanders Constr. Co., 298 Ark. 36, 764 S.W.2d 452 (1989); see also Hardeman v. Hass, 246 Ark. 559, 439 S.W.2d 281 (1969).

When the indemnity contract at issue is viewed as a whole, it becomes obvious that it does not clearly and unequivocally provide that Potlatch will indemnify MoPac for all accidents caused solely by MoPac’s negligence on all of the tracks at all times. The language agreeing to indemnify MoPac against its own negligence is limited to specific “hazardous facility” areas. For example, paragraph 3(c) applies to any movable appliance used by Potlatch in loading and unloading railroad cars, 3(d) applies to a traveling crane and a hoist, 3(e) applies to a gate across the switch, and 3(g) applies to Potlatch’s switch engine. The general indemnity provision is contained in paragraph 4, and it provides for equal liability in event of joint or concurring negligence. The trial court, in the oral statement granting the judgment notwithstanding the verdict, ruled that paragraph 3(b) of the contract provides complete indemnity for any and all liability. The ruling was incorporated in the written order granting the judgment. The ruling was in error. Paragraph 3(b) provides that Pot-latch will own and operate a rotary car dumper “and appurtenances thereto” on the dumper track and that it will indemnify MoPac for accidents “caused by” or “connected with the existence, construction, maintenance, use, operation or removal of said-dumper or the operation of engines, cars, or trains over said tracks and upon, over, beneath, or adjacent to said dumper.” (Emphasis supplied). The paragraph does not purport to provide indemnity for unrelated areas or upon unrelated tracks.

At trial, the court correctly ruled that it was foi the jury to decide whether the accident occurred adjacent to, or on the appurtenances of, the dumper, and there was substantial evidence to support the jury’s decision that the track for unloaded cars, where the accident occurred, was not appurtenant to the dumper, nor was it adjacent to the dumper. Jack Gressette, who supervised the design and construction of the Potlatch facility, testified that the appurtenances to the dumper were the concrete pit, the walkways, the handrails, and the control room. The accident occurred on the unloaded car track 400 yards away from the dumper. Therefore, there was substantial evidence from which the jury could have concluded that the accident did not occur on the appurtenances to, or at a place adjacent to, the dumper.

We reached a similar conclusion in Missouri Pacific R.R. v. Southern Cotton Oil Div., 238 Ark. 421, 390 S.W.2d 113 (1965). In that case, a brakeman for MoPac was injured when he fell into a minnow pool on Southern Cotton Oil’s property. Id. at 422, 390 S.W.2d at 114. MoPac sued for indemnity, claiming that the area was within the clearance area of the contract. The minnow pool itself lacked 2 3/4 inches of being within the area contracted by the shipper to be free of obstacles. Id. at 423, 390 S.W.2d at 115. We held that a question of fact was presented as to whether scraping the grass around the sides of the minnow pool constituted a violation of the free clearance agreement, and upheld the finding that Southern Cotton was not liable to indemnify MoPac. Id. at 423-24, 390 S.W.2d at 115.

MoPac urges that, as a matter of law, the accident took place “in [a] manner caused by, resulting from, incident to, or connected with the existence, construction, maintenance, use, operation or removal” of the dumper. It contends that leaving the unloaded cars on the unloaded car track was “essential” to the operation of the dumper, as the purpose was to provide a place to release and store cars that had been dumped so the next car could be placed in the dumper.

The indemnity agreement does not provide for indemnity for accidents or occurrences that take place on the unloaded car track. Rather, it provides for indemnity for incidents occurring “adjacent to” or on “appurtenances of’ the dumper, and it describes the dumper and its location on the dumper track and then sets out the obligations of the parties in relation to the dumper. There is no unequivocal expression to extend the protection past the dumper track, past the operation of the dumper, to the coupling of the empty cars 400 yards away on another track.

MoPac also contends that, as a matter of law, the accident occurred “adjacent to” the dumper. For the reasons previously set out, it was a question of fact whether the accident occurred “adjacent” to the dumper.

In summary, the trial court erred in ruling that, as a matter of law, MoPac was “entitled to complete indemnity from defendant for any and all liability, in any manner, caused by or resulting from incident to or connected with the movement or attempted movement of cars” under paragraph 3(b) of the indemnity agreement. Paragraph 4 of the agreement does provide for equal liability if there is joint or concurring negligence, but, for the reasons already stated, there was substantial evidence that Potlatch was not negligent.

Potlatch advances two other assignments of error, but its counsel stated in oral argument that they were alternative arguments only. Since we reverse on the first assignment, we do not reach the alternative assignments. In summary, on direct appeal we reverse the grant of the judgment notwithstanding the verdict and reinstate the jury verdict.

We now turn to MoPac’s cross-appeal. It first argues that if we reverse the judgment notwithstanding the verdict, we should not reinstate the verdict; rather, we should order a new trial. We decline to do so. Plaintiff MoPac had the burden of proof, and the jury found that it did not meet that burden. A trial court is not to substitute its judgment for that of the jury and set aside a verdict. Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982). Certainly, we will not substitute our judgment for that of the jury by granting a new trial.

MoPac next argues that the trial court erred in refusing to ask on voir dire whether any potential juror had an interest in, or connection with, liability insurance companies and the insurance company acting as Potlatch’s agent in this case. The facts underlying the argument are as follows. Potlatch moved in limine to exclude any reference to or evidence of insurance coverage. At a hearing before trial, MoPac argued that it should be able to ask if any juror had a connection with the Fireman’s Fund Insurance Company. The court granted the motion in limine and stated that Potlatch was self-insured and did not have liability insurance in the usual sense; that it only posted $500,000 with Fireman’s Fund which would be the first $500,000 paid on a judgment, if any, and anything over that would be paid by an insurance company that was solely owned by forest companies whose stock is not open for purchase to the general public. The trial court additionally stated that voir dire about insurance under these circumstances would likely mislead the jury, as Fireman’s Fund would not actually be paying the $500,000. The trial court concluded that it would not be a good faith question.

If a party’s counsel acts in good faith, he may, in one form or another, question prospective jurors with respect to their interest in or connection with insurance companies. Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1989). The good faith requirement is that counsel, in asking questions about insurance, must be justified in the belief that an insurance company has an interest in the outcome of the litigation. Dedmon v. Thalheimer, 226 Ark. 402, 290 S.W.2d 15 (1956). Insurance is not to be unnecessarily injected into a case. DeLong v. Green, 229 Ark. 100, 313 S.W.2d 370 (1958). Here, the trial court determined that because the $500,000 being held by Fireman’s Fund was actually Potlatch’s money, Fireman’s Fund did not have an interest in the outcome, and that unnecessarily injecting insurance into voir dire would likely mislead the jurors into believing that Pot-latch was insured. The determination of whether counsel has acted in good faith is “largely in the discretion of the trial court,” and we will not reverse a trial court’s ruling on that question unless there was an “abuse of discretion.” Superior Forwarding Co. v. Sikes, 233 Ark. 932, 936-37, 349 S.W.2d 818, 821 (1961) (see cases and article cited therein). We cannot say the trial court abused its discretion in this case.

MoPac next contends that the trial court erred in allowing introduction of defendant’s Exhibit Nos. 17 and 18 and in refusing to allow MoPac to present evidence as to the prior activities of Potlatch as rebuttal evidence to defendant’s Exhibit Nos. 17 and 18. Potlatch’s Exhibit No. 17 is a memo from Leon Wilson, a MoPac employee who investigated the accident, to Kim Luther, former counsel for MoPac. It says that at one time Potlatch had a problem with broken pins, but that the problem had been cleared up. Potlatch’s Exhibit No. 18 was a memo from Wilson to Mr. R.E. Alexander of MoPac. It said that Wilson had originally thought that Potlatch employees had let an empty chip car go and caused the accident, but that Higley had stated that a car hit him from the north, which was the direction of the MoPac engine. The memos were read to the court by David Dwerlkotte, an employee in the Operating Department of Union Pacific for MoPac. The memos were introduced after Dwerlkotte said that he was unaware of any problems on the empty chip track or any maintenance problems having anything to do with Higley’s injury.

MoPac objected to introduction of the exhibits on the ground they were double hearsay. The parties had stipulated to the business record authentication requirement. The court correctly overruled the objection. The documents were not hearsay because Leon Wilson was an employee of MoPac; thus, they were statements against interest by a party. Rule 801 of the Arkansas Rules of Evidence provides that a statement is not hearsay if it is an admission by a party-opponent. A.R.E. Rule 801(d)(2). This includes a statement made by an “agent or servant concerning a matter within the scope of his agency or employment made during the existence of the relationship.” A.R.E. Rule 801(d)(2)(iv).

MoPac also argues that it should have been allowed to bring in testimony by Potlatch employees Maurice Bell and David Dwerlkotte that, as a result of a disagreement with MoPac crews, Potlatch crews intentionally set off cars with both couplers closed about six months to one year prior to Higley’s accident. Bell’s testimony was from his direct knowledge, but Dwerlkotte’s testimony would have come from information given him by Higley. The proffer of Bell’s testimony had nothing to do with broken pins and was not relevant to rebut the evidence offered by Potlatch on fixing the broken pins. A.R.E. Rule 401. Relevance of evidence is within the trial court’s sound discretion, subject to reversal only if an abuse of discretion is demonstrated. Turner v. Lamitina, 297 Ark. 361, 761 S.W.2d 929 (1988). Dwerlkotte’s testimony was hearsay, as it was based on a statement made by Higley. A.R.E. Rule 801(c). Thus, the arguments are without merit.

MoPac’s final argument on cross-appeal concerns Potlatch’s use of a video tape showing how the dumper functions. MoPac objected to the video tape because it depicted a chip track with only one car, and there were more than twenty cars on the track at the time of the accident. Potlatch responded that it was not offering the video as a reenactment of the accident, but only to show the jury how the dumper functioned. The court viewed the tape and found it admissible to show how the dumper operated.

Both parties agree that the original occurrence need not be duplicated for a videotape to be admissible as a demonstration. See Carr v. Suzuki Motor Co., 280 Ark. 1, 655 S.W.2d 364 (1983). The real question is whether an exhibit such as this one will aid the jury or confuse it. See Rayner v. Stauffer Chemical Co., 585 P.2d 1240 (Ariz. App. 1978). In Carr, cited by MoPac, the video tape was, as in this case, offered as a demonstration and not as a reenactment. Id. at 2, 655 S.W.2d at 365. It showed a professional motorcycle driver riding a motorcycle. We held that it was error to admit the video, because the professional driver could mask any deficiency in the operation of the motorcycle and, in doing so, mislead the jurors. Id. at 4, 655 S.W.2d at 365. There were no allegations here that the number of cars on the track caused the accident. There is nothing about the number of cars on the track which would confuse the jurors about the functioning of the dumper. Thus, the trial court did not err in allowing the video tape to be shown.

Reversed and verdict reinstated on direct appeal; affirmed on cross-appeal.

Brown, J., not participating.

Special Justice Beverly Rowlett joins in this opinion.


text:
    Bernard WHETSTONE v. William M. CHADDUCK
    95-155
    900 S.W.2d 558
    Supreme Court of Arkansas
    Opinion delivered July 10, 1995

      Appellant, pro se.

      Anderson & Kilpatrick, by: Overton S. Anderson and C. Timothy Spainhour, for apppellee
   Robert H. Dudley, Justice.

Attorney Bernard Whetstone filed a medical malpractice suit on behalf of William Golden and Kim Golden, Medical Doctors, as parents of Emily Golden, against Dr. William M. Chadduck, a pediatric neurosurgeon, and other medical doctors. The complaint alleged malpractice in the treatment of the Goldens’ daughter, Emily. This fact was reported in the Arkansas Times in an article titled Doctors vs. Doctors. Dr. Chadduck took offense at some of the statements in the article and. filed a complaint seeking damages for defamation against several individuals, including Whetstone. Whetstone filed a motion to dismiss and a motion for sanctions under ARCP Rule 11. Chad-duck took a voluntary nonsuit at the hearing on Whetstone’s motions. The trial court retained for consideration Whetstone’s motion for Rule 11 sanctions. After argument from both sides, Chadduck was ordered to pay Whetstone and two other defendants $1,000.

Whetstone appealed. We reversed because the trial court did not consider the amount of Whetstone’s reasonable expenses, including attorney’s fees, as required by Rule 11. Whetstone v. Chadduck, 316 Ark. 330, 871 S.W.2d 583 (1994). We remanded for the trial court to reconsider the amount of the sanction in light of the amount of attorney’s fees paid. Id. at 333, 871 S.W.2d at 584.

Upon remand Whetstone testified that in defense of the defamation suit he incurred expenses of $39,032.07 including attorney’s fees of $4,290.17, court costs of $820.95, appeal costs of $731.41, and many other expenses, such as loss of time. The trial court ruled that “a ‘reasonable attorney’s fee’ does not necessarily mean actual legal expenses incurred,” awarded Whetstone $250 for the hearing on remand, and entered judgment in the total amount of $1,250. The trial court did not specify the reason it determined that $1,250 was appropriate. Whetstone again appeals. Since our earlier decision to remand and the trial court’s review on remand, we have handed down Crockett v. Wilson, 321 Ark. 150, 901 S.W.2d 826 (1995), which directly deals with factors for determining the appropriateness of Rule 11 sanctions. Because those factors are relevant in this cause, we remand this matter to allow the trial court to consider those factors.

Whetstone additionally asks us to remand the case to another division of the Pulaski County Circuit Court. We have taken such action once, Robinson v. Robinson, 218 Ark. 526, 237 S.W.2d 20 (1951), but the facts of this case are nothing like the facts of the cited case. Whetstone has not even made a suggestion of disqualification in the lower court.

Reversed and remanded.

Corbin, J., not participating.


author: David Newbern, Justice.

text:
    Jerry Lee BURRESS v. STATE of Arkansas
    CR 94-976
    902 S.W.2d 225
    Supreme Court of Arkansas
    Opinion delivered July 10, 1995

      A. Wayne Davis, for appellant.

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

The appellant, Jerry Lee Burress, was stopped by a police officer for a traffic violation. By radio, the officer learned of an outstanding warrant for Mr. Burress’s arrest. Mr. Burress was arrested and was asked to empty his pockets. He was found to be in possession of a .25 caliber pistol. A search was conducted of his pickup truck. The search revealed methamphetamine and drug paraphernalia in a compartment on the instrument panel which contained the vehicle’s electrical fuses.

Mr. Burress was charged with possession of a class II controlled substance with intent to deliver. He moved to suppress the evidence on the ground that the search was neither a proper inventory of the vehicle, which was to be impounded, nor a reasonable search incident to arrest. He also raised an issue about whether the officer arresting him was within his geographic jurisdiction when the traffic stop occurred. The motion was overruled, and Mr. Burress pleaded guilty to a lesser charge of possession, purporting to reserve the suppression issue for appeal as is permitted by Ark. R. Crim. R 24.3(b). We must dismiss the appeal for lack of jurisdiction because there was a lack of strict compliance with the provisions of the rule.

Rule 24.3(b) provides:

With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendré [contendere], reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.

Although the record of trial reveals a reference by the Trial Court to “a document entitled Guilty Plea Statement,” neither the abstract nor the record of trial contains any reference to a writing reserving the right to review. No such document is contained in the record. As guilty pleas are generally not appeal-able, an attempted appeal from a guilty plea must be dismissed for lack of jurisdiction unless the requirements of Rule 24.3(b) have been met. Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995); Noble v. State, 314 Ark. 240, 862 S.W.2d 234 (1993). If the express terms of Rule 24.3 are not met, we acquire no jurisdiction to hear the appeal of a conditional plea. Bilderback v. State, supra. See Scalco v. City of Russellville, 318 Ark. 65, 883 S.W.2d 471 (1994).

Appeal dismissed.


text:
    STEVE STANDRIDGE INSURANCE, INC. v. The Honorable Don LANGSTON, Circuit Judge
    95-310
    900 S.W.2d 955
    Supreme Court of Arkansas
    Opinion delivered July 10, 1995

      Pryor, Barry, Smith, Karber & Alford, by: Thomas B. Pryor, for appellant.

      Bradley & Coleman, by: Jon R. Coleman-, and Shaw, Led-better, Hornberger, Cogbill & Arnold, by: Robert E. Hornberger, for appellee.
   David Newbern, Justice.

An airplane owned by Flanco Leasing, Inc., and CCT, Inc. (the owners), was destroyed in a crash. The owners sued General Insurance Company of America (SAFECO), contending an insurance policy issued by SAFECO covered the loss. SAFECO defended on the ground that the airplane was used as a charter, an activity not covered by the policy in question. The complaint also stated an alternative negligence claim against the petitioner, Steve Standridge, Inc., (Standridge) the insurance agency which procured the policy for the owners. It was alleged that Standridge knew the status and usage of the airplane and negligently failed to obtain the proper policy.

Standridge is a citizen o" Montgomery County. The action was brought in Sebastian County where SAFECO was served. Standridge contends Sebastian County is not the proper venue with respect to the claim against it, even if it is proper as to SAFECO, because there is no allegation of joint liability. The owners contend that Standridge waived the claim of improper venue, that the writ should not issue because there are facts to be determined by the Trial Court, and that the venue issue is moot because judgment has been entered against SAFECO. We agree with Standridge that there is no allegation of joint liability and that there has been no waiver. Nor do we conclude that there is a factual question to be answered by the Trial Court or that the venue issue has been entirely mooted by the judgment against SAFECO. We, therefore, issue the writ.

Issuance of a writ of prohibition is limited in most instances to cases in which there is a complete lack of jurisdiction in the trial court of the subject matter of litigation and there is no other way to halt the proceedings. Monroe Auto Equipment Co. v. Partlow, 311 Ark. 633, 846 S.W.2d 637 (1993). This Court, however, has a long history of granting the writ in favor of a party as to whom venue is improperly laid. We characterize the venue issue as one of jurisdiction of the person, the improper assertion of which, in that instance, justifies issuance of a writ of prohibition. That tradition and the reasons for it are reported and explained in Prairie Implement Co. v. Circuit Court of Prairie County, 311 Ark. 200, 844 S.W.2d 299 (1992).

1. Joint liability

Arkansas Code Ann. § 16-60-116(a) (1987) deals with venue when there are defendants residing and summoned in separate counties. It provides, “Every other action may be brought in any county in which the defendant, or one (1) of several defendants, resides or is summoned.” This provision supplies the only possible basis upon which Standridge may be sued in Sebastian County in this case. Standing alone, it would seem to permit the action to be brought against SAFECO and Standridge together in Sebastian County, as there is no venue issue with respect to the action against SAFECO and the two of them are being sued together. That is not the case, however, for as we explained recently in Junction City Sch. Dist. v. Alphin, 313 Ark. 456, 855 S.W.2d 316 (1993):

Decades ago, this court added a gloss to this venue statute and held that where venue is appropriate for one defendant, it will only lie for a co-defendant when that co-defendant is jointly liable with the resident defendant. See B-W Acceptance Corp. v. Colvin, 252 Ark. 306, 478 S.W.2d 755 (1972); Barr v. Cockrill, 224 Ark. 570, 275 S.W.2d 6 (1955); Terry v. Plunkett-Jarrell Grocer Co., 220 Ark. 3, 246 S.W.2d 415 (1952); Wernimont v. State, 101 Ark. 210, 142 S.W.2d 413 (1942); Atkins Pickle v. Burrough-Uerling-Brasuell, 271 Ark. 897, 611 S.W.2d 775 (Ark. App. 1981).

In Barr v. Cockrill, supra, we explained that the joint liability must be “common liability of the defendants on the same cause of action.” Although the claims in this case arise from the same transaction or occurrence, i.e., the insuring of the airplane, they are not joint liability claims, and they state different causes of action.

2. Waiver

A claim of improper venue may be waived if there is a failure to object. Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994). Standridge objected at the outset of the litigation and has not relented. A waiver may also occur, however, if the party objecting to venue seeks affirmative relief in the action with respect to which the venue objection has been made. Thompson v. Dunlap, 244 Ark. 178, 424 S.W.2d 360 (1968). SAFECO attempted to remove this case to a United States District Court, contending that Standridge had been fraudulently joined as a party solely to defeat federal jurisdiction. The United States District Court ultimately remanded the case to the Sebastian Circuit Court after finding that removal was not warranted.

While the case was before the United States District Court, Standridge apparently did not contend that removal to the federal court was improper due to improper state court venue. In addition, Standridge moved for summary judgment in the federal court.

Our conclusion is that neither the failure to press the state court venue issue in the federal court nor the request for affirmative relief there caused a waiver of the venue issue in the Sebastian Circuit Court proceedings.

The owners cite two cases which state that, for there to be proper removal, the state court must have jurisdiction that can be conferred to the federal court; thus it is necessary for the federal district court to determine if venue was proper in the state proceedings. Still v. Missouri Pacific Railroad Co., 355 F.Supp. 78 (1971); Cobb v. National Lead Co., 215 F.Supp. 48 (1963). From these cases, the owners conclude that Standridge was obliged to raise the state court venue issue to the federal court.

In response, Standridge points out that the federal court determined that removal was improper, and remanded the case to the Sebastian Circuit Court. Accordingly, regardless of what took place in federal court, the state proceedings essentially “picked up where they left off,” which was just after Standridge filed its motion to dismiss. In support of this argument, Standridge cites B-W Acceptance Corp. v. Colvin, supra, where we said:

We cannot agree with respondent that petitioner’s removal of the case to the United States District Court or its subsequent remand had the effect of waiving the question now raised as to venue. Upon remand, the case stood in the state court in the same position it would have had it never been removed, and it was the duty of the state court to proceed as if it had never been removed.

See also Trinity Universal Insurance Co. v. Robinson, 227 Ark. 482, 299 S.W.2d 833 (1957).

In addition, Standridge calls our attention to the fact that the federal court, after finding that Montgomery County was within the Western District, declared the venue issue moot. Standridge argues that this ruling effectively foreclosed consideration of the issue during the removal proceedings.

In Allstate Ins. Co. v. Bourland, 296 Ark. 488, 758 S.W.2d 700 (1988), we said:

Allstate has been unable to cite, and we have been unable to find, any case in which there was a remand from the federal to the state court where it was held that a state court must treat a pleading filed in the federal court as having been filed in the state court for any purpose.

That case, coupled with the B-W Acceptance Corp. and Trinity Universal Insurance cases, indicates that whatever happens in a federal court has no bearing on the proceedings in state court once the case has been remanded after an unsuccessful removal attempt.

3. Fact issue

The owners argue that, while ruling on Standridge’s motion to dismiss, the Trial Court resolved a factual dispute in that he determined the “legal effect of the facts.” Under these circumstances, they contend that a writ of prohibition is not a proper remedy, citing Porter Foods Inc. v. Brown, 281 Ark. 148, 661 S.W.2d 388 (1983), and Twin City Lines, Inc. v. Cummings, 212 Ark. 569, 206 S.W.2d 438 (1947).

In the Twin City Lines case a factual dispute existed because certain evidence was in direct conflict. Helen Pearce was killed in a bus accident while riding on a bus owned by Twin City Lines. The administrator of her estate filed a negligence action against Twin City Lines in Benton Circuit Court. The applicable venue statute provided that such an action might be brought either in the county where the accident happened or the county where the deceased resided at the time of her death. At the hearing on Twin City Lines’ motion to dismiss for improper venue, there was a factual dispute concerning the decedent’s residence. The administrator offered proof that the decedent resided in Benton County. Twin City Lines presented evidence that her true residence was Sebastian County. The Trial Court found that she resided in Benton County, and therefore, venue in Benton Circuit Court was proper. As it was necessary for the Trial Court to decide a question of fact to determine the proper venue, we held that prohibition was not proper.

In Porter Foods, Inc. v. Brown, on the other hand, there was a dispute concerning whether certain facts indicated the application of a particular venue provision. In that case, Charles Swafford filed a complaint in Greene County in which he alleged that Porter Foods breached an employment contract and stock purchase agreement. Summons was served on the president of Porter Foods in Pulaski County and also on a salesman for Porter Foods located in Greene County. Porter Foods moved to dismiss for improper venue contending venue was proper only in the county where the defendant resided or was served, and thus it should have been sued in Pulaski County rather than in Greene County. In response, Swafford contended that Porter Foods maintained a branch office or other place of business through its salesman in Greene County, and Greene County was a proper venue under a statute that provides that a corporation may be subject to suit in any county in which it maintains a branch office. See Ark. Code Ann. § 16-58-125 (1987). The Trial Court held that venue was proper and denied the motion to dismiss.

This court denied prohibition, carefully pointing out that there does not necessarily have to be a factual dispute for the jurisdiction of the trial court to rest on a factual determination. We said:

When jurisdiction depends on the establishment of facts or turns on facts which are in dispute, the issue is one correctly determined by the trial court [citations omitted], This does not necessarily mean that the evidentiary facts presented must be in dispute, but rather the legal effect of such facts is in controversy between the parties. A question of fact must be determined.
* * *
In the case at bar, the question decided by the court below involved a determination from facts presented, of whether or not the activities in Green County constituted an “other place of business . . . . “ It is this type of jurisdictional factual dispute that is properly resolved by the trial court and not by this court on a writ of prohibition.

From these cases, it appears that a writ of prohibition will not be issued as long as resolution of the venue (jurisdiction) issue rests on one of two possible kinds of factual determinations. The first instance is where, as in the Twin City Lines case, the evidence presented by both parties is in direct conflict, and the trial court’s resolution of this conflict was the basis of its denial of the motion to dismiss for improper venue. The second kind is illustrated in the Porter Foods, Inc., opinion, where the evidentiary facts are not in direct conflict; however, there is a dispute over whether the established facts “fit” a certain legal definition. For example, we have stated that where jurisdiction turns on whether the activities of a party satisfy the “minimum contacts” test, a writ of prohibition should be denied. In Wisc. Brick & Block Corp. v. Cole, 274 Ark. 121, 622 S.W.2d 192 (1981), we said:

Whether the “minimum contacts” test has been satisfied is a question of fact. In cases where jurisdiction depends upon the establishment of facts, the issue of jurisdiction must be decided by the trial court, and even if that decision should be wrong, we correct that error on appeal and not on prohibition.

The owners contend that a factual dispute similar to the one described in the Porter Foods, Inc., case exists in this case. More specifically, they contend that the Trial Court’s jurisdiction rested on a determination of whether the facts “fit” the definition of joint liability as that term is used in the cases cited.

This case only involves a legal determination whether there was joint liability. That depends not upon resolution of any dispute as to what was done or not done by the parties or determination of any particular status either of them may occupy. Rather, the question here depends on the nature of the litigation and whether there can be joint liability, given the pleadings before the Court. That is purely a question of law.

4. Mootness

The owners contend that the summary judgment granted against SAFECO in the breach of contract action renders Standridge’s petition for a writ of prohibition moot. Particularly, they contend that, as Standridge was sued only as an alternative defendant, the negligence action against it would have survived only had it been found that SAFECO did not breach the contract. The owners essentially contend that the summary judgment against SAFECO extinguished the claim against Standridge. They say there is no immediate threat of harm to Standridge, and a more appropriate time to deal with this issue, if at all, would be if SAFECO, which has filed an appeal, obtains a reversal and remand.

In response, Standridge contends that the Trial Court, by granting summary judgment against only SAFECO, has created a procedural problem under Ark. R. Civ. P. 54(b) because the summary judgment in favor of the owners against SAFECO does not mention Standridge and thus it may not be final and appeal-able. The contention is that the Court of Appeals may remand the case on the ground that there is no appellate jurisdiction because not all the claims against all parties have been disposed of.

Our conclusion is that, while we could decline to issue the writ on the basis that the matter could be resolved upon the appeal, that would leave Standridge with no remedy for an indefinite period. The impropriety of Sebastian County as the venue for the owners’ action against Standridge is clear, and we do not deem the prospect of resolution of the issue by SAFE-CO’s appeal to be an adequate remedy in these circumstances.

In closing we note that the Trial Court mentioned judicial economy in his remarks upon denial of Standridge’s motion to dismiss. Of course, we endorse that concept, but we cannot elevate it over the right of a defendant to be tried “at home” except in instances where our venue statutes, as interpreted in our precedents, permit a trial elsewhere. See Prairie Implement Co. v. Circuit Court of Prairie County, supra.

Writ of prohibition granted.