author: Robert H. Dudley, Justice.

text:
    John ARENS and Richard Alexander v. The COMMITTEE ON PROFESSIONAL CONDUCT of the Supreme Court of Arkansas
    91-80
    820 S.W.2d 263
    Supreme Court of Arkansas
    Opinion delivered November 25, 1991
    [Rehearing denied December 23, 1991.]

      Arens & Alexander, by: Lynn D. Lisk, for appellants.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: JohnS. Cherry, Jr., for appellee.
   Robert H. Dudley, Justice.

The Committee on Professional Conduct issued letters of caution as a sanction against John Arens and Richard Alexander, law partners, for charging a fee that was not “reasonably commensurate with the circumstances” and, after termination of their employment, failing to “take steps to the extent reasonably practicable to protect the client’s interests.” They jointly appeal the entry of their separate sanctions on the committee’s records. We affirm the committee’s actions.

Leon and Marcie Stoppel were the operators of a farming business, involving about 7,000 acres, near Oakley, Kansas. They owed $1,000,000 to the Production Credit Association and almost another $1,000,000 to the Federal Land Bank, and were having trouble paying their loans. They had been through Chapters 11 and 12 federal bankruptcy actions, and the Production Credit Association and the Federal Land Bank had filed foreclosure actions against them.

In January of 1988, Leon Stoppel read an article about John Arens’ abilities as a lawyer in the field of agricultural loans and lenders’ liability. Later, while Arens was in Wichita, Kansas, to speak at a seminar on legal matters relating to agriculture, Stoppel phoned him. Although the Stoppels had a lawyer in Kansas, Leon Stoppel thought that they needed the services of a specialist in the field of lenders’ liability for agricultural loans. In April of 1988, he went to Fayetteville to visit Arens and inquire further about his services.

On July 5,1988, with the foreclosure sale of their farm only weeks away, Stoppel and his wife employed the law firm of Arens and Alexander. According to Stoppel, the law firm was to try to get their loans restructured and then to immediately file and fully pursue their lenders’ liability claims against the Production Credit Association and the Federal Land Bank. That understanding is verified by the contract of employment which provides: “My wife.and I wish to retain you and your firm to represent us in a lawsuit (if necessary) with the Farm Credit System to enforce our rights under the Agricultural Credit Act of 1987 and to obtain damages caused by the Farm Credit System.”

At the time of employment, the Stoppels paid a retainer of $60,000 to the law firm. Under the terms of the written contract the retainer was non-refundable. In addition to the retainer paid that day, the Stoppels agreed to pay an additional amount upon the following contingency:

It is our understanding that if any recovery is made over and above debt restructure or reduction, that our expenses, including the above retainer, and your firm’s out-of-pocket expenses, will be paid. Only thereafter will any net recovery be shared on a sixty percent (60 %) to us and forty percent (40%) to your firm basis.

Rule 1.5 states that a lawyer’s fee shall be reasonable. It additionally provides the criteria to be used in determining reasonableness in a case: the time and labor anticipated, the novelty apd difficulty of the questions involved, the skill required to perform the anticipated services, the extent to which this case would exclude, other employment, the customary fee for specialists, the amount of money involved, the time limitations imposed by the clients, the length of the relationship with the client, and the experience and reputations of the lawyers.

The fact that a fee may be high does not alone make the fee unreasonable. Here, the Stoppels were faced with the imminent sale of their farm and equipment. Time was of the essence. The amounts involved in the foreclosure sale and the anticipated lenders’ liability suits were large. The primary law involved, the Farm Credit Act of 1987, was new. The issues were complex. These (2) two attorneys devoted almost all of their time to this particular type of practice. The Stoppels were debtors facing forced collection of the money they owed, and the lawyers cannot be faulted for collecting their fee in full while it was still possible to do so. In addition, we cannot ignore the thought by many attorneys that a part of the supposed strategy of a large lender is to wear down and financially exhaust a debtor and his lawyer. Under this type of fee agreement, a case could be completed.

In sum, while the fee was high, it was not, by itself, unreasonable when consideration is given to all of the services which were to be performed by the attorneys. However, the amount of a retainer is not the sole consideration in determining whether a fee is reasonable. If a lawyer charges a reasonable retainer and is retained for the purpose of providing specified services, but never performs those services, the fee charged would become unreasonable. Just as a lawyer cannot bill a client for work he has never performed in the past, a lawyer cannot bill a client for work he will never perform in the future. In this case, the Committee sanctioned the attorneys, not because of the amount of the retainer, but because the Committee found that the attorneys did not provide the services for which they were paid. We do not reverse decisions made by the Committee unless we find, from our de novo review, that its findings were clearly erroneous. Muhammed v. Committee on Professional Conduct, 291 Ark. 29, 722 S.W.2d 280 (1987). We cannot say the findings of the Committee were clearly erroneous.

Immediately after their employment in July of 1988, the law firm obtained a temporary restraining order staying the foreclosure sale, but the petition to make the order permanent was dismissed. It is undisputed that these actions took only a small amount of the attorneys’ time. The foreclosure sale was held, and the Stoppels lost their land. Leon Stoppel testified that he began to have difficulty in getting Arens to respond to his phone calls. The Stoppels’ case was assigned to another lawyer in the firm. On April 20, 1989, some eight (8) months after the firm’s employment, a lenders’ liability suit was filed in a federal district court in Kansas against three (3) defendants, the Farm Credit Bank of Wichita, the Federal Land Bank Association of Colby, and the Northwest Kansas Production Credit Association. The complaint contained several state common law claims submitted under the pendant jurisdiction of the federal court. On September 26,1989, the district court dismissed the complaint for failure to state a claim upon which relief can be granted. The reasoning of the district judge was that there was no private right of action under the Agricultural Credit Act of 1987, there was no federal question pending in the state claims, and there was no diversity jurisdiction.

On October 9,1989, the Stoppels went to Fayetteville to see their lawyers. They met with Arens, Alexander, and another attorney in the firm and decided not to appeal the district court’s ruling. Instead, they decided to wait a short while and see whether Congress included a private right of action in the Farm Credit Act of 1990. The Stoppels were told that the law firm had friends in Congress who were going to attempt to amend the Act to include a private right of action. Nothing came of this, and it was decided that the state claims should be filed in state court. Leon Stoppel stated that he and his wife were adamant about filing the lenders’ liability suit based upon common law in state court, and that they were told the principals of the law firm would become personally involved, and that it would be filed around January 1, 1990. Alexander admitted it would have taken very little more work to file a complaint in state court since the state claims had already been stated in the federal complaint.

Leon Stoppel attempted to phone Alexander several times but was unable to reach him. Stoppel never received a return call. On November 10, 1989, Leon Stoppel sent a letter to Alexander expressing reservations about continuing the action, and concluding: “I have tried reaching you by telephone and have not received your return. I believe this is a matter we should discuss. We will be anxiously waiting to hear from you in this most important matter.” He received no response and was not able to find out whether the state complaint was ready for filing.

On January 29, 1990, the Stoppels went to Fayetteville to confront Arens about the lack of action in their case. Leon Stoppel testified that they went into Arens’ office and the following occurred:

John [Arens] went back and said, “I’ll have to find out where the file is,” and the file should have been with Richard Alexander because he was the one that was going to take personal charge of the case, and he found it on the desk of a fellow by the name of Linzay. . . . The only thing that I know is that when we went to John’s office and he went to find the file, it was in Mr. Linzay’s office, and John made the statement, he said, “I found this in Mr. Linzay’s office. He hasn’t done a thing on it, and I’m going to fire that man.”

Leon Stoppel testified that he told both Arens and Alexander that he had lost all confidence in them and “John [Arens] said to me, he says, ‘You don’t have any money coming, and if you think you do have any money coming, you’re going to have to hassle me for it.’ ” The Stoppels left Fayetteville and returned to their home in Kansas. Soon thereafter, a secretary in the law firm called the Stoppels and asked what they intended to do. Leon testified that he replied, “We want an accounting of our money and we want our files.”

On February 12, 1990, the Stoppels sent a letter to Arens making their position very clear. It stated that they thought they had been “shuffled and re-shuffled” among various members of the firm, and that the firm had not lived up to its part of the contract. He asked for their files and an accounting.

In summation, after being employed in July 1988 to immediately and fully pursue the claims of lenders’ liability, the law firm, by late January 1990, had obtained a temporary restraining order in the pending foreclosure suit, applied for an injunction in the same proceeding, and filed a complaint under the Agricultural Credit Act of 1987. The temporary restraining order was dissolved, the application for an injunction was dismissed, and the complaint in federal district court filed pursuant to the agricultural act was dismissed for failure to state a claim upon which relief could be granted. Nothing more had been done. No depositions had been taken. No trials had been held. No appeals were taken and, most importantly, the state cause of action had not been filed.

On February 27, 1990, after being discharged, the law firm responded by letter to the Stoppels and stated that it would give an accounting and enclosed a complaint to be filed in state court. The state court complaint was almost a replication of the federal complaint. The caption was different but references were made to federal rules. In describing the complaint enclosed in the letter Leon Stoppel testified as follows:

Then later on I got a letter from Richard [Alexander], and then he sends me a case which is the same case that was filed in the federal court. All he did was change the top page.
I showed it to my [Kansas] attorney, and my attorney said, “No way could I ever take anything like that into court.” He said, “That judge would just shave my head.” He said, “This case has to be redrafted and pull from that case what applies to the Federal part of it and then make your State case out of whatever you can use out from that Federal case.”

On March 8,1990, Leon Stoppel again wrote the firm asking for their files and for an accounting, as they had received neither. On April 28,1990, they filed this complaint with the Committee. On June 1, 1990, the lawyers gave an “accounting” for 1,133.25 hours work on the case by 12 different attorneys. The lawyers admit that regular work records were not kept; that the attorneys in the firm were asked only to keep sufficient records for the firm to see how it was allocating its resources. This “accounting” reflected that one lawyer spent 200 hours preparing the complaint for federal court and that, subsequently, 300 to 400 hours were spent on research relating to the complaint.

As previously set out, the Committee found that the attorneys’ fees were not “reasonably commensurate with the circumstances.” There was substantial evidence from which the Committee could find that the $60,000 retainer was paid to fully litigate the Stoppels’ claim of lenders’ liability in federal and state courts, but the lawyers failed to so do. In addition, there was substantial evidence from which the Committee could find that the cases were to be pursued immediately upon payment of the retainer and that the state claim was to be filed around January 1, 1990, but the lawyers failed to perform that agreement. There was substantial evidence from which the Committee could find that Arens and Alexander were to be personally involved in the state action, but failed to be so involved. Finally, the Committee, composed primarily of lawyers, was free to believe or disbelieve that 600 to 700 hours, or perhaps more than three (3) months work, were spent on researching and preparing one complaint. We cannot say that the Committee’s finding that the fee was not “reasonably commensurate with the circumstances” is clearly erroneous.

In addition, the Committee sanctioned the appellant attorneys for failing to take steps to the extent reasonably practicable to protect their client’s interests upon termination of representation. We cannot say that finding is in error. Rule 1.16(d) of the Model Rules of Professional Conduct provides that, upon termination of representation, a lawyer must take steps to the extent reasonably practicable to protect his client’s interests, and surrender to the client his papers and property. Leon Stoppel testified that the appellant would not return the Stoppels’ files to them. The appellants did not rebut that testimony in any manner.

The appellants next argue that the participation of Committee member Jim McKenzie violated their rights of due process and fundamental fairness. This argument comes about in the following manner: In 1937, a George Christopher founded the Christopher Oil Co., Inc., which has its principal place of business in Prescott. The oil company apparently was a very successful business. In 1973, George Christopher and his wife, Evangelina, the principal stockholders in the oil company, placed all of the common stock of the oil company in a trust. This multi-million dollar trust fund was to distribute sufficient funds to the Christophers to maintain them during their lives and then to pay 70 % of the remainder to Ouachita Baptist University, 15% to the Church of Christ of Prescott, and 15% to the Presbyterian Church of Prescott. Horace McKenzie, the father and law partner of Committee member Jim McKenzie, was a trustee of the Christopher trust and the secretary of the Christopher Oil Co., Inc. and received $300 per month as secretary of the oil company. In 1987, the law firm of Arens and Alexander filed a suit on behalf of George and Evangelina Christopher to dissolve the trust. Horace McKenzie was named as a defendant. The allegations against him were common to all of the defendants. He was never deposed, and the suit was settled amicably. The trust was dissolved, and the corpus was distributed back to the Christophers.

Jim McKenzie’s name appears on the Committee’s letter head, and the appellant received letters from the Committee prior to the hearing. They clearly had notice he was a Committee member. Yet, the appellants never suggested before the sanctions were announced that he should disqualify because of the trust case. However, after the Committee issued the sanction, the appellants argued that McKenzie’s participation was a violation of their rights of due process and fundamental fairness. The argument is without merit for two (2) reasons. First, the appellants waived the issue by waiting until the outcome of the case and then, after not liking the result, moving to disqualify the trier of fact. Secondly, we are satisfied from the record that McKenzie did not regard the trust suit as a personal matter and that he harbored no ill feelings whatsoever against the appellants for representing a client in seeking to dissolve a trust.

Accordingly, we affirm the Committee’s entry into its records of letters of caution against the appellants.

Newbern, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    ARNOLD FIREWORKS DISPLAY, INC., and Arnold Fireworks, Inc. v. Alice SCHMIDT, Mother, Next Friend, and Natural Guardian of William P. Schmidt, a Minor
    91-163
    820 S.W.2d 444
    Supreme Court of Arkansas
    Opinion delivered November 25, 1991

      Friday, Eldredge & Clark, by: Donald H. Bacon, for appellant.

      David Hodges, for appellee.
   Robert H. Dudley, Justice.

William P. Schmidt, the eleven-year-old son of Alice Schmidt, lost the sight of his right eye as the result of a fireworks explosion. Alice Schmidt, in her capacity as William’s natural guardian, filed suit against Arnold Fireworks Display, Inc., Arnold Fireworks, Inc., and Ray Sexton, Jr., alleging they sold the errant bottle rocket to the eleven-year-old boy in June 1990, and they incurred liability since Ark. Code Ann. § 20-22-712 (1987) makes it unlawful to sell fireworks to a child under twelve (12) years of age.

The complaint was filed on October 10, 1990. Service on separate defendant Sexton was had on October 17,1990. He filed a timely answer on November 5, 1990, in which he stated:

3. The defendant did not sell fireworks to William P. Schmidt in 1989 or 1990.
4. The defendant, Ray Sexton, Jr., did not sell fireworks to anyone in 1989 or 1990.
5. The defendant did not sell nor purchase fireworks in any form or fashion even for use by himself or family members in 1989 nor 1990, therefore selling to William P. Schmidt would have been impossible.

Service on the separate defendant corporations was had on October 20,1990. Two (2) days later, on October 22,1990, copies of the complaints were forwarded to the defendant corporations’ insurance agent in Birmingham, Alabama. The agent received the copies of the complaints on October 24, 1990, but timely answers were not filed for the defendant corporations. Their answers were not filed until November 16, 1990.

The plaintiff moved to strike the corporations’ answers. They responded that separate defendant Sexton’s answer was a common answer for all defendants. The plaintiff replied that defendant Sexton’s answer was not a common answer and moved for default judgments against the corporate defendants. The corporate defendants amended their answers. The plaintiff moved to strike the amended answers and for default judgments against the corporate defendants.

The trial court struck the corporate defendants’ answers and amended answers and granted default judgments against them as to liability. The corporate defendants moved to set aside the default judgments and argued that ARCP Rule 55(c), as amended February 1, 1991, alleviates the harshness of our old rule and now makes mistake or inadvertence grounds to set aside a default. However, they did not offer any meaningful evidence of mistake or inadvertance. The trial court did not rule on the motion to set aside the default judgments within thirty (30) days, and the corporate defendants gave notice of appeal. We affirm the rulings of the trial court.

We are first faced with the question of whether the corporate defendants can appeal. The judgment against them is not a final judgment for two reasons: First, it determined only liability. The trial court reserved for trial the amount of damages. Second, there are three defendants, and the trial court granted the default judgments against only two (2) of them. Ark. R. App. P. 2(a) (1) provides that an appeal may be taken only from a final judgment and, in addition, we have often held that where one or more, but fewer than all, of the defendants were dismissed, it was not a final and appealable order. See, e.g., St. Paul Fire & Marine Ins. Co. v. First Commercial Bank, 304 Ark. 29, 801 S.W.2d 652 (1991); ARCP Rule 54(b). Conversely, Ark. R. App. P. 2(a)(4) expressly provides for an appeal in this situation: “An appeal may be taken from ... an order which strikes out an answer, or any part of an answer, or any pleading in an action.” We hold that the specific provision for appeal when an answer is stricken must control over the general provisions contained in Ark. R. App. P. 2(a)(1) and ARCP Rule 54(b).

The general purpose of Ark. R. App. P. 2(a)(1) is to prevent piecemeal appeals while portions of the litigation remain unresolved. Quite differently, Ark. R. App. P. 2(a)(4) which allows a piecemeal approach can be traced back to Section 15 of the Civil Code of 1871, which provided:

The Supreme Court shall have appellate jurisdiction over the final orders, judgments and determination of all inferior courts of the State in the following cases and no other:
First: . . .
Second: . . . or when such order strikes out an answer, or any part of an answer, or any pleading in an action;. . .

This provision is not unique to Arkansas. For example, South Carolina has an almost identical statute, S.C. Code Ann. § 14-3-330(2)(C) (Law. Co-op. 1977), which provides that an appeal may be taken when an order “strikes out an answer or any part thereof or any pleading in any action.” A South Carolina case suggests that at the turn of the Century the reason given for such a statutory provision was that an appeal based on an asserted error of law, but not of fact, should be heard in a piecemeal fashion. Harbert v. Atlanta & Charlotte Air Line Ry. Co., 53 S.E. 1001 (1906). Accordingly, we hold that Ark. R. App. P. 2(a)(4) authorizes an appeal when an answer has been stricken, even if it is not a final judgment.

The plaintiff argues that the case of Sevenprop Assoc. v. Harrison, 295 Ark. 35, 746 S.W.2d 51 (1988) mandates dismissal of this appeal. We reject the argument, because no answer was stricken in that case.

On the merits of their appeal, the corporate defendants first argue that separate defendant Sexton’s timely answer inures to their benefit. They rely primarily on a case from the court of appeals, Firestone Tire & Rubber Co. v. Little, 269 Ark. 636, 599 S.W.2d 756 (Ark. App. 1980). Their reliance on that case is misplaced. There, one defendant timely filed a general denial. By contrast, in this case separate defendant Sexton did not deny that the accident occurred or that the injury occurred or that negligence had occurred. He only denied that he took any part in the occurrence and that he was the person who sold the bottle rocket. In Southland Mobile Home Corp. v. Winders, 262 Ark. 693, 694, 651 S.W.2d 280, 280-81 (1978), we wrote:

The true test is whether the answer of the non-defaulting defendant states a defense that is common to both defendants, because then “a successful plea . . . operates as a discharge to all the defendants but it is otherwise where the plea goes to the personal discharge of the party interposing it.”

Here, separate defendant Sexton’s defense was personal to him. It was not a defense in common with the separate corporate defendants, and did not inure to their benefit. Accordingly, the trial court did not err in refusing to set aside the default judgment on the basis that a timely common answer was filed.

The corporate defendants next argue that the default judgments against them should be set aside because of mistake or inadvertence. We summarily dispose of the argument, since the record does not give any reason for the failure to file timely answers. While the amended version of ARCP Rule 55(c) is designed to provide some relief from the onerous consequences of our prior rule, we did not intend to render meaningless the requirement that an answer must be filed within a set time. The trial court did not err in refusing to set aside the default judgment because of mistake or inadvertence.

Affirmed.


author: Robert H. Dudley,

text:
    Willie Ray MACKEY v. A. L. LOCKHART, Director of the Arkansas Department of Correction
    91-213
    819 S.W.2d 702
    Supreme Court of Arkansas
    Opinion delivered November 25, 1991

      Q. By rum Hurst, Jr., for appellant.

      Winston Bryant, Att’y Gen., Clementine Infante, Asst. Att’y Gen., for appellee.
   Robert H. Dudley,

Justice. In 1982, the appellant was found guilty of first degree murder and sentenced to life imprisonment. We affirmed. Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983). In 1985, the appellant filed a petition in this court to proceed for post-conviction relief under A.R.Cr.P. Rule 37. We denied the petition. Mackey v. State, 286 Ark. 189, 690 S.W.2d 353 (1985). In 1991, the appellant, who remains in the penitentiary, filed a petition in the Circuit Court of Garland County for a writ of habeas corpus alleging that A. L. Lockhart, the Director of the Department of Correction, was unlawfully detaining him. The summons reflected that Lockhart was in Pine Bluff, which is in Jefferson County. The Circuit Court of Garland County had jurisdiction to determine whether the writ should be issued, State Department of Public Welfare v. Lipe, 257 Ark. 1015, 521 S.W.2d 526 (1975), although it did not have jurisdiction to determine whether the prisoner, who is in another county, should be released. Johnson v. McClure, 228 Ark. 1081, 312 S.W.2d 347 (1958). The Circuit Court of Garland County refused to issue the writ of habeas corpus. We affirm.

A habeas corpus proceeding does not afford a prisoner an opportunity to retry his case. A writ of habeas corpus will not be issued to correct errors or irregularities that occurred at trial. The remedy in such a case is direct appeal. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990). A writ of habeas corpus will not be issued as a substitute for post-conviction relief. Rather, the writ of habeas corpus will be issued only when the commitment is invalid on its face or the committing court lacked jurisdiction. Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 478 (1989). The petitioner must plead either the facial invalidity or the lack of jurisdiction and make a “showing, by affidavit or other evidence, [of] probable cause to believe” he is so detained. Ark. Code Ann. § 16-112-103 (1987). A hearing is not required if the petition does not allege either of the bases of relief proper in a habeas proceeding, George v. State, 285 Ark. 84, 685 S.W.2d 141 (1985), and, even if a cognizable claim is made, the writ does not have to be issued unless probable cause is shown. Ark. Code Ann. § 16-112-103 (1987).

The petition in this case stated (1) that the court that convicted him of murder, the Circuit Court of Garland County, did not have jurisdiction of the case because there was no proof that the murder occurred in Garland County; (2) that he had not been charged with first degree murder, the crime of which he was convicted; (3) that petitioner’s due process rights were violated because he was convicted based on certain hearsay testimony; (4) that a violation of petitioner’s right to secure witnesses had occurred at the trial; and (5) that petitioner had been illegally arrested. The appellant caused a summons to be issued, but never caused it to be served on appellee Lockhart. Instead, the Attorney General entered Lockhart’s appearance and contested the issuance of the writ. Both parties attached exhibits to their pleadings. See Ark. Code Ann. § 16-112-103 (1987).

Here, only one of the allegations provides a cognizable basis for a writ of habeas corpus, and that is the allegation the Circuit Court of Garland County lacked jurisdiction to try the appellant. The core of this allegation is that the scientific evidence gathered during the police investigation was inconclusive about where the murder occurred.

“The State is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue.” Ark. Code Ann. § 5-1-111(b) (1987). The State is thus presumed to have jurisdiction. See Holt v. State, 281 Ark. 210, 662 S.W.2d 822 (1984). Further, the State attached as an exhibit to its response eyewitness testimony from the original trial that affirmatively proved the murder occurred in Garland County. The appellant offered no countervailing affidavit or exhibit. Thus, the trial court correctly held that there was no reasonable basis to question the trial court’s exercise of jurisdiction in appellant’s trial for murder.

Finally, the appellant argues that pursuant to Coplen v. State, 298 Ark. 272, 766 S.W.2d 612 (1989) and George v. State, 285 Ark. 84, 685 S.W.2d 141 (1985), he was entitled to a hearing because he stated a cognizable claim for relief. Neither case sustains appellant’s argument. In George we wrote: “While our statutory habeas corpus scheme contemplates a hearing in the event a writ is issued, we find nothing requiring a hearing be given any petitioner regardless of the content of the petition.” 285 Ark. at 84, 685 S.W.2d at 142 (emphasis added). In Coplen, supra, we denied relief and cited George v. State, supra.

Affirmed.


author: Steele Hays, Justice.

text:
    Eloise HONOR v. Terry YAMUCHI, Director of the Arkansas Department of Human Services, in his Official Capacity Only, and as the Division of Aging and Adult Services
    91-40
    820 S.W.2d 267
    Supreme Court of Arkansas
    Opinion delivered November 25, 1991

      David J. Manley, for appellant.
    C. Norton Bray, for appellant.
   Steele Hays, Justice.

On August 6,1990, the Department of Human Services (DHS) filed a petition in the Probate Court of White County pursuant to Ark. Code Ann. § 5-28-101 (1987) for temporary and long-term protective custody of Eloise Honor, an alleged endangered adult suffering from mental and physical ailments which rendered her unable to care for herself. By ex parte order the probate court found probable cause for protective custody, ordered temporary custody and scheduled a hearing on long-term custody for August 20. Ms. Honor was given notice of the hearing and of her right to be present, to effective assistance of counsel, to cross-examine witnesses, and to present evidence in her own behalf.

At the hearing for long-term protective custody Ms. Honor was present but was not represented by counsel. The probate judge found that she lacked the capacity to care for herself, authorized DHS to place her in an appropriate facility, appointed Mr. David Manley as attorney ad litem and ordered judicial review within three months.

Mr. Manley promptly filed a petition in the White County Chancery Court seeking injunction and declaratory relief to return Ms. Honor to her home based on a denial of due process. DHS moved to dismiss on grounds of sovereign immunity, that neither Ark. Code Ann. § 5-28-301 (1987) nor the due process clause of the Fourteenth Amendment required the appointment of counsel and that Ms. Honor had expressly waived counsel.

That matter was heard on November 1 and the chancellor found that Ms. Honor had waived counsel at the August 20 hearing in probate court. Ms. Honor’s petition was denied, as was the motion of DHS, however, the chancellor ruled that Ms. Honor revoked her waiver of counsel and ordered her release and the termination of protective custody.

Ms. Honor brings the matter to this court on four points of appeal: 1. The chancellor erred in holding that § 5-28-101 does not require the appointment of counsel for her; 2. The Chancellor erred in holding that neither art. II, sections 2, 8 and 21 of the Arkansas Constitution nor the due process clause of the Fourteenth Amendment require that Ms. Honor be represented by counsel; 3. The chancellor erred in finding that Ms. Honor waived her right to counsel at the hearing, and 4. The chancellor erred in finding that Ms. Honor was not a prevailing party for purposes of an attorney’s fee pursuant to 42 U.S.C. § 1988 (1981 & Supp. 1991). By cross appeal DHS argues that the chancellor erred in not granting its motion to dismiss.

Addressing the appellant’s points first, we agree that the chancellor erred in holding her right to due process was not violated by the failure to require that she either be represented by counsel, or make an intelligent waiver of that right. Appellant argues that an attorney is required implicitly by the language of the Adult Abuse Act, §§ 55-28-301 — 305 (1987), and by the Arkansas and United States Constitutions. We will deal with the constitutional requirement first.

DHS does not dispute Ms. Honor’s right to an attorney at the long-term care hearing if she so desired. Ms. Honor argues, however, that not only does she have a right to an attorney in theory, but if that right is to be meaningful, more is required of the trial court in the implementation of that right than occurred here. She argues that in connection with a proceeding for long-term care of an abused adult the court must determine whether the individual has the desire and ability to retain counsel, and if indigent, to see that an attorney is appointed, and if no attorney is retained or appointed, the court must be satisfied the subject has knowingly and intelligently waived the right to an attorney. These factors correspond to criminal cases where defendants face the possibility of incarceration. See Ark. R. Crim. P. 8.2 and 8.3. We believe they are equally applicable here, there being no material distinction between procedures aimed at the curtailment of physical liberty whether criminal or civil.

The point is well stated in Project Release v. Prevost, 722 F.2d (2nd Cir. 1983), in its discussion of civil commitment to a mental institution:

Involuntary civil commitment to a mental institution has been recognized as “a massive curtailment of liberty,” Vitek v. Jones, 445 U.S. 480, 491-92, 100 S.Ct. 1254, 1262-63 63 L.Ed.2d 552 (1980); Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394 (1972), which, because it may entail indefinite confinement, could be a more intrusive exercise of state power than incarceration following a criminal conviction. See Colyar v. Third Judicial District Court, 469 F. Supp. 424, 429 (D. Utah 1979) (citing Humphrey v. Cady, 405 U.S. at 509, 92 S.Ct. at 1052). Civil commitment for any purpose requires due process protection. See Vitek, 445 U.S. at 491-92, 100 S.Ct. at 1262-63; Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979); O’Connor v. Donaldson, 422 U.S. 563, 580, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) (Burger, C.J., concurring). Indeed, “[t]here can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law.” O’Connor, 422 U.S. at 580, 95 S.Ct. at 2496 (Burger, C.J., concurring). Whether the state purports to act pursuant to a parens patriae interest in promoting the welfare of the mentally ill, see Rogers v. Okin, 634 F.2d 650, 657-59 (1st Cir. 1980), vacated and remanded sub nom. Mills v. Rogers, 457 U.S. 291, 102 S.Ct. 2442, 2447, 73 L.Ed.2d 16 (1982), or pursuant to its police power interest in preventing violence and maintaining order, 634 F.2d at 654-57; 102 S.Ct. at 2447; the state, in so acting may not curtail or deny Fourteenth Amendment substantive or procedural due process protections in exercising such powers. See O’Connor, 442 U.S. at 580, 95 S.Ct. at 2496; Specht v. Patterson, 386 U.S. 605, 608, 87 S.Ct. 1209, 1211, 18 L.Ed.2d 326 (1967). Diminished capacity alone cannot serve to undermine protections afforded the individual’s liberty interest in this area.

Project Release at 926.

The court continued:

Recent cases indicate that a right to counsel exists where an individual’s physical liberty is threatened by the state’s action. See Lassiter v. Department of Social Services, 452 U.S. 18, 25-27, 101 S.Ct. 2153, 2158-2159, 68 L.Ed.2d 640 (1981); see also Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 1763, 36 L.Ed.2d 656 (1973) (probation revocation hearings); In re Gault, 387 U.S. 1, 36-37, 87 S.Ct. 1428, 1448, 18 L.Ed.2d 527 (1967) (juvenile delinquency proceedings) cf. Vitek, 445, U.S. at 495-97, 100 S.Ct. at 1264-66 (prisoner challenging attempted transfer to mental institution). Some courts have explicitly recognized a right to counsel in civil commitment proceedings. See, e.g., Heryford v. Parker, 396 F.2d 393, 396 (10th Cir. 1968); Dixon v. Attorney General, 325 F.Supp. 966, 974 (M.D. Pa. 1971); In re Hop, 29 Cal. Rptr. 721, 728 (1981); In re Fisher, 39 Ohio St.2d 71, 72, 313 N.E.2d 851, 858 (1974); cf. Thornton v. Corcoran, 132 U.S. App. D.C. 232, 407 F.2d 695, 701 (1969) (matter considered in context of mental examination requested when accused raises insanity issue; counsel not required at psychiatric staff conference); United States v. Albright, 388 F.2d 719, 726 (4th Cir. 1968) (when mental examination requested by prosecution, counsel not required by psychiatric interview).
A right to counsel in civil commitment proceedings may be gleaned from the Supreme Court’s recognition that commitment involves a substantial curtailment of liberty and thus requires due process protection. Addington, 441 U.S. at 425-27, 99 S.Ct. at 1808-10.

Project Release at 976.

However, not only must the right to an attorney be recognized in civil proceedings where physical liberty is in jeopardy, it is necessary that the right be recognized in a meaningful way so that constitutional safeguards are in fact implemented. This is discussed in Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968):

Where, as in both proceedings for juveniles and mentally deficient persons, the state undertakes to act in parens patriae, it has the inescapable duty to vouchsafe due process, and this necessarily includes the duty to see that a subject of an involuntary commitment proceeding is afforded the opportunity to the guiding hand of legal counsel at every step of the proceedings, unless effectively waived by one authorized to act in his behalf
. . . Nor is it sufficient that the Wyoming statute permissively provides that the proposed patient “may be represented by counsel.” Fourteenth Amendment due process requires that the infirm person, or one acting in his behalf, be fully advised of his rights and accorded each of them unless knowingly and understandingly waived. [Our emphasis.]

To the same effect see In re Fisher, 313 N.E.2d 851, 39 Ohio St.2d 71 (1974).

The safeguards for right to counsel in criminal cases were outlined recently in Kincade v. State, 303 Ark. 331, 796 S.W.2d 580 (1990):

The Sixth and Fourteenth Amendments to the Constitution of the United States guarantee that any person brought to trial in any state or federal court must be afforded the fundamental right to assistance of counsel before he can be validly convicted and punished by imprisonment. Before an accused manages his own defense he must knowingly and intelligently waive the right to counsel. Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. The burden is on the government to clearly demonstrate a waiver of counsel. A trial court must inquire of an accused’s ability to retain counsel, and if the accused is an indigent, counsel must be appointed for him. [Citations omitted.]

Nothing in this record reflects that these rights were effected. While Ms. Honor was given a notice of the hearing required by § 5-28-304 of the Adult Abuse Act, which included the statement that she had the right to “effective assistance of counsel,” nothing else was done with regard to that right. When Ms. Honor attended the hearing she was not notified of her right at that time, nor was any inquiry made as to whether counsel had been retained, was desired, or whether Ms. Honor could afford an attorney. On the strength of what is before us we cannot conclude that an informed waiver occurred at this hearing, nor was Ms. Honor even asked if she chose to waive her right to counsel. The most that could be said of the proceedings is that she showed a passive acquiescence in general, but there is simply no affirmative showing of a waiver of counsel.

Nor can we agree with the chancellor’s finding of a waiver of counsel where he also found long-term protective custody to be appropriate, which requires a finding by the trial court that:

1) the person is lacking the capacity to comprehend the nature and consequence of remaining in a situation that presents an imminent danger to his health or safety;
2) the individual is unable to provide for his own protection from abuse or neglect; and
3) the court finds clear and convincing evidence that the individual to be placed is in need of placement as provided in this chapter.

See § 5-28-305. To determine that long-term custody is appropriate because the individual lacks the capacity to comprehend impending dangers, finding at the same time there has been a knowing and intelligent waiver, is patently inconsistent. Accordingly, we agree that the trial court erred in holding that appellant’s right to counsel was not violated.

As to the contention of Ms. Honor that the Adult Abuse Act itself requires the safeguards we have just discussed, there is no need to address the issue, in view of our holding they are required on constitutional grounds.

As the appellant is now determined to be the prevailing party in this case, the chancellor should determine the award of attorneys’ fees pursuant to 42 U.S.C. § 1988.

CROSS APPEAL

On cross appeal, DHS argues the trial court erred in failing to dismiss the § 1983 action against both the Department of Human Services, and its director, Terry Yamauchi, in his official capacity. Citing to Will v. Michigan Department of State Police, 491 U.S. 58 (1989), appellees argue that both the state agency and the director are immune from suit.

We agree that neither the state nor a state agency can be sued under § 1983, see Will v. Michigan, supra, and the case against the department should have been dismissed on that basis. However, this is only a matter of form in this case as the director of the agency can be sued in his official capacity where, as here, only injunctive relief is sought.

Of course a state official in his or her official capacity when sued for injunctive relief, would be a person under § 1983 because ‘official capacity actions for prospective relief are not treated as actions against the state.’ [Citations omitted.]

Will v. Michigan, at 2311, n.10.

Appellees also argue the trial court failed to dismiss the case on the ground of an adequate remedy at law under Ark. R. Crim P. 60(b) or under a writ of habeas corpus. The appellees however failed to make a motion to transfer which was the proper remedy for this objection. See Horne Brothers, Inc. v. Ray Lewis Corp., 292 Ark. 477, 731 S.W.2d 190 (1987); Stolz v. Franklin, 258 Ark. 999, 531 S.W.2d 1 (1976).

Furthermore, appellant’s request for relief included future injunctive relief as well as immediate relief, relief not available under the remedies at law. Appellant requested that an injunction issue against the director to prohibit the identical action against her unless constitutional safeguards were in place. Regardless of whether the appellant is entitled to bring an action of law, the mere existence of that right does not deprive the equity court of jurisdiction unless the legal remedy is clear, adequate and complete. Spears v. Rich, 241 Ark. 15, 405 S.W.2d 929 (1966).

Reversed on direct appeal, affirmed on cross appeal.

       We note that there was no request by appellant to declare the Adult Abuse Act unconstitutional in this case. Rather, her argument is only that although not expressly required by the act, these requirements are implicity recognized. See 16 Am. Jur. 2d, Constitutional Law § 225 (1979); and to the same effect ice Hardware Mutual Casualty Company v. Maxey, 212 Ark. 161, 205 Ark. 29 (1947).

       Appellant’s original complaint requested injunctive relief for appellant’s release but no request for future injunctive relief. However at the hearing on the motion to dismiss, appellant’s attorney in discussing this matter, in effect, made an amendment to the pleadings, with no objection from appellees at that time. Neither is there any objection on this point on appeal.


text:
    STATE of Arkansas v. Frances M. WATSON
    CR 91-149
    820 S.W.2d 59
    Supreme Court of Arkansas
    Opinion delivered November 25, 1991

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.

      McCullough Law Firm, by: R. S. McCullough and Rita F. Bailey, for appellee.
   Steele Hays, Justice.

Appellee Frances Maudine Watson was charged in Count I of an information with “being a parent, guardian, or person legally charged with the care or custody of a child, she recklessly failed to take action to prevent the abuse of Daniel Toric who is less than eleven years old.” Arkansas Code Ann. § 5-27-221(a)(l) (1987). Ms. Watson filed a motion to dismiss Count I, alleging that the state could not prove she was a parent, guardian or person legally charged with the care of Daniel Toric.

At a hearing on the motion, counsel for the state made a proffer of the evidence the state expected to produce at trial, the essence of which was that Daniel’s mother was having difficulty caring for Daniel and two siblings and Daniel began staying in the home of Maudine Watson, a family friend. Ms. Watson asked the Department of Human Services to permit her to keep Daniel and that was granted. Thereafter Ms. Watson assumed the role of a parent to Daniel and that arrangement prevailed for some indeterminate period.

After the hearing the state’s proffer the circuit judge ordered Count I of the information dismissed:

Came the defendant, Francis Watson, and moves this court to dismiss Count I of the information. After considering all matters of law and fact, including proffers of evidence, and arguments of counsels, the court finds the evidence of the state to be insufficient and lacking as proof of the requisite legal relationship or status for the defendant to be guilty of Permitting Child Abuse.

The state brings this appeal pursuant to Ark. R. Crim. P. 36.10(b-c), relying upon a single point of error: The circuit court had no jurisdiction to grant the motion to dismiss the charge against Ms. Watson.

The state cites State v. Jamison, 277 Ark. 349, 641 S.W.2d 719 (1982), which bears marked similarities to the case before us. Jamison was charged with theft. He waived a jury trial and moved to dismiss, arguing that the facts would not constitute theft. Counsel informed the court of the facts, to which the parties stipulated, and the circuit judge ruled the conduct did not amount to a theft. The state appealed and we reversed and remanded. We quote from that opinion:

The court could have dismissed the charge because it did not state a criminal offense according to the law. (There was no challenge in that regard.) But there is no provision for dismissing a charge because the facts that will be presented do not amount to criminal conduct. Who decides what the facts are? The court was careful to get the parties to agree that the trial had not started, that is, double jeopardy could not be a defense if we reversed his decision. But if the trial had not started, how could facts be determined? The Court could not accept the “facts” unless it assumed the role of the fact finder, a posture he decided not to do. A.R.Cr.P., Rule 36.10 (Supp. 1981), which allows interlocutory appeals by the state, makes no provision for an appeal from a decision based on what the facts will be. Furthermore, in the crime of theft, there is always the element of intent, which of course has to be decided by the jury, or the court sitting without a jury. Certainly that issue was not resolved.

If the issue were simply whether it is was error for the trial court to dismiss the information because the prospective “facts” do not sustain the charge, the Jamison case would be solid precedent for the state’s position. But that is not the argument presented on appeal and the reason is apparent — it was not the point preserved for review. To remedy that predicament the state argues that the circuit court lacked jurisdiction to dismiss the appeal, citing Jamison, supra, and Hardcastle v. State, 25 Ark. App. 157, 755 S.W.2d 228 (1988). But neither of those decisions address, nor even mention, jurisdiction.

While we agree with the state that it was error to dismiss the subject count of the information based upon a proffer of “facts,” we do not agree that the court lacked subject matter jurisdiction. Jurisdiction is the power of the court to hear and determine a cause, including the power to enforce its judgment; it is the power to hear and determine the subject matter in controversy between the parties. Gland-O-Lac Co. v. Creekmore, Judge, 230 Ark. 919, 327 S.W.2d 558 (1959); Healey & Roth v. Huie, Judge, 220 Ark. 16, 245 S.W.2d 813 (1952); Lamb & Rhodes, v. Howton, 131 Ark. 211, 198 S.W. 521 (1917).

The state reasons that in a criminal case fact issues are decided by a jury, which of course is true. But that right is often waived in favor of a trial by the judge sitting as fact finder and jurisdiction does not stand or fall on whether Ms. Watson might have demanded a jury trial — a purely speculative issue at preliminary stages. The circuit court plainly had jurisdiction, irrespective of the type of trial which would later be conducted.

We do not suggest the state concurred in any manner to the dismissal of this case. But it is evident the state did not object on the basis now argued. The ground of the state’s objection, as we interpret the record, was that the proffered evidence was sufficient to sustain the allegation that Ms. Watson was legally charged with the care or custody of Daniel Toric. Had the state objected on the ground that the “facts” could be determined only by means of a trial and not by way of a proffer at a pretrial hearing, presumably the error would not have occurred.

Affirmed.


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

text:
    Fran NORTON v. STATE of Arkansas
    CR 91-198
    820 S.W.2d 272
    Supreme Court of Arkansas
    Opinion delivered November 25, 1991
    [Rehearing denied January 21, 1992.]

      Christopher Carter, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Fran Norton, was convicted of cruelty to animals. She contends the evidence was insufficient, some of the evidence should have been suppressed due to violation of the Fourth Amendment and Ark. R. Crim. P. 15.4, and in any event, she should not have been convicted on more than one count as she was charged with only one count. We hold the evidence was sufficient, there was no violation of the Fourth Amendment, and Ms. Norton was properly charged and convicted of two counts of the offense. The conviction is affirmed.

The conviction resulted from activities of Ms. Elaine Occhipinti, who described herself as a “field officer” of the North Central Arkansas Humane Society. Ms. Occhipinti had visited the Norton premises and observed malnourished and poorly maintained animals. She attempted unsuccessfully to work with Ms. Norton to solve the problem.

Ms. Occhipinti ultimately complained to the prosecutor, and an arrest warrant for Ms. Norton issued. Baxter County Sheriff’s Officer Clippinger was sent to Ms. Norton’s residence to make the arrest. Ms. Occhipinti and two other members of the Humane Society arrived at the property at approximately the same time as Officer Clippinger. At Ms. Norton’s request the Humane Society personnel were asked by Officer Clippinger to leave the property and did so.

Immediately after Ms. Norton was removed by Officer Clippinger, Ms. Occhipinti and company called in a veterinarian and entered the property. They seized a number of rabbits and goats they determined to need immediate care.

Ms. Norton was convicted in Municipal Court of cruelty to animals. She appealed to the Circuit Court where she moved to suppress evidence resulting from the “search” of her property, including photographs which were taken and the testimony of the veterinarian concerning the condition of the animals seized. Her suppression motions were denied on the ground that no constitutionally prohibited search had occurred, and the de novo trial resulted in conviction.

1. Sufficiency of the evidence

The test for sufficiency of the evidence is that it must be of such force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force the mind to go beyond speculation or conjecture and is not satisfied by evidence which gives equal support to inconsistent inferences. This court views the evidence in the light most favorable to the appellee, and we look only to the evidence which supports the verdict. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).

Ms. Norton refers us to her testimony that she loved her animals, that she knew their personalities, and that the veterinarian testified she had sought help by asking for medications when the animals were ill. She also points to the testimony of the veterinarian that not all the animals were in critical condition.

Arkansas Code Ann. § 5-62-101 (1987) provides:

Cruelty to animals.
(a) A person commits the offense of cruelty to animals if, except as authorized by law, he knowingly:
***
(3) Subjects any animals in his custody to cruel neglect. . . .

Prosecution witnesses testified that the goats were in such discomfort from long hooves that many were walking on their knees. Photographs introduced in evidence make this condition obvious, and the veterinarian’s testimony established that walking on the knees also caused pain to the animals. His testimony also established that the rabbits found alive in cages were in discomfort. Cruel neglect is obviously displayed in the photographs of the hooves and distended udders of the goats found on the property. Photographs showed many dead rabbits.

Ms. Norton contends she should not have been found guilty of a “knowing” offense because the condition of the animals was the result of her financial inability to care for them. The definition of “knowingly” is found in Ark. Code Ann. § 5-2-202(2) (1987):

A person acts knowingly with respect to his conduct or the attendent circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.

The evidence was sufficient to show Ms. Norton must have been aware that she allowed the animals to reach a deplorable condition.

2. Suppression

Ms. Norton argues the evidence and testimony should have been suppressed because Ark. Code Ann. § 5-62-112 (1987) authorizes humane society personnel to initiate the issuance of search warrants, and thus Ms. Occhipinti’s failure to obtain one makes the search illegal. She also argues a violation of Rule 15.4 in that the items seized were not listed by the “officer” conducting the search and given to her and to the Court.

Both arguments hinge on whether Ms. Occhipinti and those who accompanied her to Ms. Norton’s property were officers or agents of the State. The Fourth Amendment’s prohibítion against unreasonable searches and seizures is inapplicable to searches conducted by private citizens, Winters v. State, 301 Ark. 127, 782 S.W.2d 566 (1990), and Rule 15.4, by its terms, applies only to an “officer” making a seizure. The Trial Court found that no officer of the law conducted any search and, therefore, no search warrant was required, a conclusion with which we agree.

Ms. Norton’s argument is that Ark. Code Ann. § 5-62-113 (1987) authorized Ms. Occhipinti to make arrests, Ark. Code Ann. § 5-62-112 (1987) authorizes one who has the power to arrest to conduct a search, and thus Ms. Occhipinti was a State officer when she searched the Norton property, photographed it, and seized the distressed animals.

Arkansas Code Ann. § 5-62-113 (1987) authorizes an agent of any “society . . . incorporated for the prevention of cruelty to animals, upon being appointed by the president of the society” to make arrests of persons violating the cruelty law. There is no evidence that Ms. Occhipinti, or any of the persons who accompanied her to Ms. Norton’s property, had received an appointment from the president of the North Central Arkansas Humane Society, or any other such groups to make arrests. There is thus no showing that they could have obtained a search warrant as “officers.”

Ordinarily the State is in the posture of having to prove a warrantless intrusion was not in violation of the Fourth Amendment, Dominguez v. State, 290 Ark. 428, 720 S.W.2d 703(1986); however, the initial burden of showing one’s constitutional rights were invaded is on the party challenging the search. Pritchard v. State, 258 Ark. 151, 523 S.W.2d 194 (1975). Before Ms. Norton could assert state action in violation of her Fourth Amendment right, it was her burden to establish a state officer, as opposed to a private citizen, conducted the search.

Her inability to show that Ms. Occhipinti was a state officer is also fatal to her claim of violation of Rule 15.4.

3. Conviction on two counts

Ms. Norton argues the Trial Court erred by convicting her of two counts of cruelty to animals although she was charged with only one count in the Municipal Court and appealed only one count to the Circuit Court. The docket sheet from the Municipal Court shows Ms. Norton was charged with two counts, apparently one count was for the rabbits and one was for the goats. It states a trial was held and she was convicted. Her notice of appeal to the Circuit Court simply appealed the conviction without specifying further. We note that Ark. Code Ann. § 5-62-101 (a) (3) (1987) provides that one may be found guilty of cruelty to animals if one “[sjubjects any animals in this custody to cruel neglect. . . .”

We have no doubt that two counts were charged and that at least that many were justified.

Affirmed.

Corbin, J., dissents.

Donald L. Corbin, Justice,

dissenting. I dissent.

The majority relies on Ark. Code Ann. § 5-62-112 (1987) to make a finding that there was no evidence that Ms. Occhipinti, or any of the persons who accompanied her to Ms. Norton’s property, had received an appointment from the President of the North Central Arkansas Humane Society or any other such group to make arrests. The majority determines that before Ms. Norton could assert state action in violation of her Fourth Amendment right, it was her burden to establish that a state officer, as opposed to a private citizen, conducted the search.

The facts of this case should leave one with the sole conclusion that Ms. Occhipinti acted as an official representative of the North Central Arkansas Humane Society, cloaked in the police powers of the state under section 5-62-112 and not as a private citizen. She filed the complaint as Elaine Occhipinti, agent of North Central Arkansas Humane Society. Her testimony was replete with reference to her official capacity, either as a field officer or as an agent of the Society. To me, it is putting form over substance to require the defendant under these facts to prove that Ms. Occhipinti served under “appointment by the President of the Humane Society.” Never by her pleadings, acts, representations, deeds, or testimony did she represent herself as acting in other than as an official of the North Central Arkansas Humane Society. The evidence seized by her and used by the state should have been suppressed.


author: Tom Glaze, Justice.

text:
    Huey P. FOREHAND, an Individual, Ann Forehand, Guardian of the Estate of Huey P. Forehand, an Incompetent v AMERICAN COLLECTION SERVICE, INC., Assignee of Jackson County Memorial Hospital, et al.
    91-156
    819 S.W.2d 282
    Supreme Court of Arkansas
    Opinion delivered November 25, 1991

      Irwin Law Firm, by: Robert E. Irwin, for appellant.

      McMillan, Turner, & McCorlcle, by: F. Thomas Curry, for appellee.
   Tom Glaze, Justice.

This case involves the question of whether a circuit court has the jurisdiction to order payment of a judgment from a guardianship bank account. Huey Forehand is mentally handicapped, and his mother, Ann Forehand, is the court-appointed guardian of his assets, including his account at the Bank of Dover (the Bank). The appellee filed its Oklahoma judgment against the appellant in the Pope County Circuit Court. The court subsequently issued a writ of garnishment on the Bank, and the Bank responded stating that it owned funds belonging to the ward that could only be removed by order of the probate court. Upon the appellee’s application, the circuit court issued an order directing the garnishee Bank to pay the funds. The appellant then filed a motion to set aside the order, which was denied by the court.

On appeal, the appellant argues that the circuit court’s ordering the Bank to pay the ward’s money was erroneous for the following two reasons: 1) the probate court had exclusive jurisdiction of the use of the ward’s funds; and 2) the ward’s funds held by the probate court were not subject to garnishment. We find merit in the appellant’s arguments and therefore reverse.

Probate court has exclusive jurisdiction over all matters of guardianship, other than guardians ad litem in other courts. Ark. Code Ann. § 28-65-107(a) (1987). A guardian is under a duty to pay from the estate all just claims against the estate of his ward. Ark. Code Ann. § 28-65-317(a)(1) (1987). Provision (b) of § 28-65-317 provides that upon petition of any person having a claim against the estate of a ward or demand against the estate, “the court, after notice, upon appropriate hearing, may direct the guardian to pay the claim.”

This court has recognized that a claimant against a ward’s estate could file his or her suit in circuit court instead of probate court. First State Bank v. Thessing, 241 Ark. 150, 406 S.W.2d 865 (1966). But, in Thessing, we did not address whether the circuit court could order payment by the probate court. In Galion Iron Works & Manufacturing Co. v. Russell, 167 F. Supp. 304 (W.D. Arkansas 1958), the federal court addressed a situation similar to the case at bar. In that case, the plaintiff had already established a claim against the ward’s estate that was not contested and sought to enforce that claim against the estate in federal courts. In commenting on how claims are to be brought against guardianships, the federal court stated the following:

State or federal courts may entertain suits to adjudicate claims against an estate, and those adjudications must be respected by the probate court, but it is nevertheless only the probate court which can allow such claims. . . .
Thus, this court might adjudicate a claim against he estate, and if it did so, that adjudication could be presented to the probate court for allowance. But here the claim against the estate has been adjudicated and reduced to judgment, the validity and amount of which is admitted. The plaintiff is asking not that this court adjudicate its claim against the estate, but that this court, in effect, make an allowance in the form of a garnishment on the basis of the plaintiffs judgment, and then, on the ground that funds are in its possession, proceed to make a distribution. . . . (T)he probate court unquestionably acquired prior jurisdiction to allow claims against the incompetent by virtue of its prior jurisdiction over the incompetent and his estate. . . .

The Galion court’s foregoing recitation is a correct reflection of this state’s probate statutory procedures in these matters. A circuit court may establish claims against a ward’s estate, but only the probate court has jurisdiction over the payment of those claims. Thus, once a claim has been established in another court as was the situation here, the prevailing party must then file the adjudicated claim in the probate court. Our recent opinion in In Re Porter, 298 Ark. 121, 765 S.W.2d 944 (1989), is in accord. In Porter, this court recognized that the circuit court had the power to review and conclude whether the money in a CD held in a guardianship account was accessible to the guardian for the purpose of reimbursement. However, we further stated that this did not mean that the circuit court has the authority to determine how a guardian is to use a ward’s funds. Instead, the probate court has exclusive jurisdiction to govern the release of funds in the guardianship account. Id.

In addition, we also find support for the appellant’s argument that the funds in the guardianship account were not subject to garnishment. In Gill v. Middleton, 60 Ark. 213, 29 S.W. 465 (1895), this court held that an administrator of an estate was not subject to garnishment. Again in Galion Iron Works and Manufacturing Co. v. Russell, 167 F. Supp. 304, the federal court cited Gill and other Arkansas cases and concluded as follows:

From the cases cited it is clear that under Arkansas law, claims such as presented by the plaintiff here as an equitable garnishment are claims which must be administered through the Arkansas probate courts, and the courts of general jurisdiction are refused the power to upset the administration of estates and to allow the priorities of claims against estates to be circumvented by a garnishment proceeding, and this applies no less to equitable than to legal garnishments.

In sum, the probate court has exclusive jurisdiction over the payment of claims against the ward’s account, and the circuit court was in error in ordering payment. While appellee acted properly in filing and establishing its foreign judgment in circuit court, it then was required to file its claim in the probate court to receive payment.

For the reasons stated above, we reverse, holding the circuit court erred in ordering the Bank to pay appellant’s guardianship account funds to the appellee.

       The Bank of Dover is now the First Bank of Arkansas.


text:
    W.E. LONG CO. — Independent Bakers’ Cooperative v. HOLSUM BAKING CO.
    91-125
    820 S.W.2d 440
    Supreme Court of Arkansas
    Opinion delivered November 25, 1991

      Ramsay, Bridgforth, Harrelson and Starling, by: Phillip A. Raley and William S. Roach, for appellant.

      Rose Law Firm, A Professional Association, by: Hillary Rodham Clinton and James H. Druff, for appellee.
   Tom Glaze, Justice.

This case involves a dispute between W. E. Long Co. (Long) and Holsum Baking Co. (Holsum Baking) over the use of the “Holsum” trademark in the marketing of bakery products. The major events leading to the dispute are relevant to a discussion of the issues raised on appeal.

Long first registered the “Holsum” mark on such products in Arkansas in 1929. Long licensed Shipley Baking Co. (Shipley), permitting it to use the “Holsum” mark. Years later, in 1944, Long entered into an agreement granting Holsum Baking a bread formula and the right to use the “Holsum” tradename for advertising purposes in Pine Bluff and in other areas not expressly reserved to other Long customers. In fact, Holsum Baking’s geographical market reached outside Pine Bluff and bordered Shipley’s territory. Under the 1944 agreement, Holsum Baking was able to purchase $3,000 or more advertising supplies from Long during the calendar years of 1944,1945 and 1946. In 1946, Holsum Baking joined Quality Bakers of America (QBA), a cooperative and a Long competitor. Since then, Holsum Baking has continuously displayed both QBA’s Sunbeam trademark and the Holsum mark on its packaging. More specifically, Holsum Baking’s vice-president, David Jenkins, explained that his company sold its bread during this period under the composite mark of Holsum Sunbeam.

In 1986, however, Holsum Baking added a wheat bread product and marketed it as “Holsum Grains” with no mention of the Sunbeam mark. In this same year, Long’s representatives visited Holsum Baking and tried unsuccessfully to persuade Holsum Baking to join the Long cooperative. During this visit and discussions with Holsum Baking officials, the Long representatives inspected the bread selection of the two stores where the “Holsum Grains” bread was on display. Holsum Baking subsequently rejected a proposed membership agreement tendered to it by Long.

In February of 1990, Long claimed it had just learned of Holsum Baking’s sales of “Holsum Grains” bread and its purchasing of packaging bearing the “Holsum” mark. Long wrote Holsum Baking requesting that it cease any further use of the mark. Holsum Baking did not respond. Long opted to contact its packaging suppliers, Mobil Chemical Co. (Mobil), Princeton Packaging Co. (Princeton) and James River Paper Co. (James River), and advised them not to sell packaging bearing the “Holsum” mark to Holsum Baking because Holsum Baking was not licensed by Long. The three suppliers acceded to Long’s request which triggered Holsum Baking’s filing this lawsuit. Because of Long’s action, Holsum Baking could obtain packaging with only the Sunbeam label.

In its complaint, Holsum Baking alleged that its 1944 agreement with Long had been breached or abandoned by the parties in 1946 and that Holsum Baking had acquired its rights to the “Holsum” mark in the territory it has continuously served over the past forty-four years. Holsum Baking further claimed a valid contractual relationship and business expectancy with its packaging suppliers, Mobile, Princeton and James River, and that Long had intentionally interfered with that relationship by cutting off its packaging and causing a loss in its bread sales. It also alleged that Long was liable for tortious interference with prospective economic advantage, fraud and conversion and prayed that Long and the three suppliers be enjoined from any acts preventing Holsum Baking from obtaining packaging bearing the “Holsum” mark.

The trial court granted Holsum Baking a temporary restraining order and one month later, a preliminary injunction from which Long brings this appeal. Long argues the trial court erred in issuing injunctive relief because Holsum Baking failed to show that it would be irreparably harmed or that it would likely succeed on the merits of its tortious allegations.

In arguing Holsum Baking suffered no irreparable harm, Long claims the trial court was clearly wrong in finding Holsum Baking suffered any damages because Holsum Baking continued selling its bread products under the Sunbeam label at the same price as it did under the Holsum mark. Citing Kreutzer v. Clark, 271 Ark. 243, 607 S.W.2d 670 (1980), Long also argues that, even if Holsum Baking had suffered some damages, the harm could be recouped through money damages and therefore cannot be considered irreparable.

At trial, Holsum Baking did present evidence reflecting monetary loss in the weekly sum of $1,975 due to its inability to sell Holsum Grains bread. In order to market this bread, Holsum Baking had to introduce a Sunbeam Sandwich Wheat, which took several weeks. Other like testimony bearing on money damages was mentioned at trial, but Holsum Baking argues its irreparable harm results from Long’s actions in preventing Holsum Baking’s use of its common law trademark right in the “Holsum” mark— a right it acquired over the years since 1946.

Mr. David Allen, a trademark expert, testified that the 1944 agreement between Holsum Baking and Long was invalid, because Long had attempted to grant a license without controlling the quality of the goods sold under the “Holsum” mark. Also, Allen opined the parties’ agreement was unenforceable because the agreement was unlawfully tied to Holsum Baking’s purchase of advertising materials from Long. In sum, because the parties’ agreement was invalid but Holsum Baking continued to use the “Holsum” mark when marketing its products in the 'territory it served, Allen concluded Holsum Baking established a valid trademark in the “Holsum” label in its market area. Based upon its acquired rights in the “Holsum” mark, Holsum Baking analogizes its situation to the trademark infringement cases where a trademark represents intangible assets such as reputation and goodwill, and a showing of irreparable harm can be satisfied if it appears that the movant for a preliminary injunction can demonstrate a likelihood of consumer confusion. General Mills, Inc. v. Kellogg Co., 824 F.2d 622 (8th Cir. 1987). Proof of actual confusion is not essential to demonstrate trademark infringement. Id. Further, the movant’s burden at the preliminary injunction stage is slight. International Kennel Club v. Mighty Star, Inc., 846 F.2d 1079 (7th Cir. 1988).

Long counters Holsum Baking’s contention, stating the rules in trademark infringement actions are inapplicable because neither Long nor anyone else is advertising or making sales in Holsum Baking’s marketing area under a trademark which infringes on any purported trademark rights of Holsum Baking. Stripped of such assertions, Long argues that Holsum Baking’s lawsuit is reduced merely to tortious claims that could be satisfied by money damages. Long further argues that, in trademark infringement cases, the likelihood of consumer confusion that leads to the threat of irreparable injury results from the use of a similar mark by another in the same market area thereby damaging the trademark owner’s goodwill and reputation. Here, Long asserts that no such confusion was shown nor was it found by the trial court.

When Long claimed knowledge of Holsum Baking’s use of the “Holsum” mark, it could have sued Holsum Baking then, claiming it was infringing on Long’s trademark. Instead, Long chose to cut off Holsum Baking’s packaging supply, by asking Mobile, Princeton and James River not to furnish Holsum Baking any more packaging with the “Holsum” label. Thus, instead of joining issues and differences in a trademark infringement lawsuit, Holsum Baking was forced to obtain other type relief in order for it to avoid losing its asserted right to the “Holsum” mark which it had long used in its service area. If Holsum Baking acceded to Long’s and its suppliers’ actions, it stood to lose any right it possessed to the “Holsum” mark.

Placed in this position, Holsum Baking, unable to file an infringement action, sought injunctive relief in order to reinstate its packaging source with its “Holsum” mark. Holsum Baking’s acquired goodwill and reputation gained over the years through the use of the “Holsum” mark is no less significant or relevant merely because the mark’s use is questioned in an action other than one involving trademark infringement.

Contrary to Long’s contention, we also believe that, because it was forced to market its bakery products without the “Holsum” label, Holsum Baking showed consumer confusion would likely arise if it was not afforded relief. For instance, since Holsum Grains was removed from the market, the consumer cannot know if the Holsum Grains bread he or she once bought is the same bread as Holsum Baking now shelves as Sunbeam Sandwich Wheat. Also, if Shipley or another Long licensee moves into the Pine Bluff area and markets “Holsum” products, such an event will likely undermine and confuse the association between Holsum Baking’s products and the “Holsum” trademark in the mind of the public. The trial court found that Holsum Baking’s loss was not only monetary but also included the unredeemable loss of goodwill. From our de novo review, we believe the record supports the trial court’s finding of irreparable harm. Thus, we are unable to say that the chancellor abused his discretion in granting a preliminary injunction. Smith v. American Trucking Assn, 300 Ark. 594, 781 S.W.2d 3 (1989).

Long next argues that Holsum Baking failed to show that it would likely prevail on the merits of any of its tortious claims. Of course, in order to justify a grant of preliminary injunction relief, a plaintiff must establish that it will likely prevail on the merits at trial. Smith v. Arkansas Trucking Ass’n, 300 Ark. 594, 781 S.W.2d 3 (1989). Here, the trial court, in issuing its temporary restraining order and preliminary injunction, found that Holsum Baking will likely prevail in its efforts to establish both that Long and Shipley have impermissibly and fraudulently interfered with Holsum Baking’s contractual relations with its suppliers. The court further found that Long and the other defendants had joined in combination to convert Holsum Baking’s accumulated goodwill by disrupting Holsum Baking’s business expectancy in its dealings with retail consumers.

In alleging that Long committed tortious interference with Holsum Baking’s business relationships with its packaging suppliers, Holsum Baking had to show (1) the existence of a valid contractual relationship or a business expectancy, (2) knowledge of the relationship or expectancy on the part of the interferor, (3) intentional interference inducing or causing a breach of termination of the relationship or expectancy and (4) resultant damage to the party whose relationship or expectancy has been disrupted. Mid-South Beverages, Inc. v. Forrest City Grocery Co., 300 Ark. 204, 778 S.W.2d 218 (1989). Clearly, Holsum Baking had a business expectancy with its suppliers, Mobil, Princeton and James River, since it had been doing business with them, especially Mobil, for years. Equally clear is the fact that Long interfered with the relationship between Holsum Baking and these suppliers when Long contacted the suppliers, instructing them to stop selling “Holsum” trademark packaging to Holsum Baking. As previously discussed, Holsum Baking sustained damages as a result of Long’s interference. From our review at this stage of the proceedings, we believe the record supports the trial court’s finding that Holsum Baking will likely prevail on the merits of this underlying tortious claim.

Long argues that it cannot be sued for tort of interference merely because it attempted to enforce its own contract with Mobile, Princeton and James River. In this regard, Long points to its agreement with these suppliers that reflects they will not sell trademark packaging which is confusingly similar to Long’s trademark or is substantially similar to Long’s packaging rights. Of course, Long’s argument begs the very question and controversy that led to the filing of this lawsuit — whether Long has any claim to the “Holsum” mark in the territory served by Holsum Baking. Based upon the evidence presented below by Holsum Baking, Long has since abandoned such a right, and Holsum Baking has acquired it.

Although briefed, we need not discuss the remaining counts alleged and argued in Holsum Baking’s lawsuit since what we have considered is sufficient to uphold the trial court’s decision to issue a preliminary injunction. A final hearing in this matter is yet to be held. At this point, Long has offered no witnesses of its own. Additional evidence and argument are sure to follow this interlocutory appeal. Suffice it to say, the trial court’s issuance of its temporary restraining order and preliminary injunctive relief is amply supported by the law and the facts at this stage of the proceedings.

For the reasons stated above, we affirm.

       Holsum Baking was previously known as Arkansas Baking Company.

       Shipley’s and Holsum Bakery’s marketing areas actually overlap in Conway, Arkansas.


author: Robert L. Brown, Justice.

text:
    Michael David GARNER v. STATE of Arkansas
    CR 91-103
    820 S.W.2d 446
    Supreme Court of Arkansas
    Opinion delivered November 25, 1991

      R. Wayne Davis, for appellant.

      Winston Bryant, Att’y Gen., by: Jeff Vining, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This case concerns the execution of a nightime search warrant and the circuit court’s denial of appellant Michael David Garner’s motion to suppress the evidence seized as a result of the search. The appellant was charged with possession of a controlled substance — specifically, marijuana — with intent to deliver but was convicted of the lesser offense of mere possession, which is a misdemeanor. He was sentenced to one year in the county jail and fined $1,000. He now appeals on the basis that insufficient facts were contained in the officers’ affidavit to establish reasonable cause for a nighttime search. We agree with the appellant, and we reverse and remand.

At 1:25 a.m. on the morning of October 10,1989, Cleburne County Sheriff Jerry Holmes and officers of the Heber Springs Police Department met with Municipal Judge Navada Richardson at the Stone County Sheriff’s office. The purpose of the meeting was for the officers and sheriff to present an affidavit for a search warrant to the judge in order to justify a nighttime search of the appellant’s premises. The affidavit was completed on a printed form. It was signed by the Cleburne County Sheriff and a Heber Springs detective and notarized by the judge.

In the affidavit, the appellant’s premises were identified, and directions to the premises were given. The dwelling to be searched was located more than 12.5 miles from the Stone County courthouse. The property to be seized was described as marijuana and drug paraphernalia. The facts establishing grounds for the search can be summarized as follows:

a. An individual arrested on February 3, 1988, for possession of controlled substances with intent to deliver had stated that he bought the drugs from the appellant.
b. During the past sixty days, the sheriffs office and the police department had received information from various sources that several purchases of marijuana had been made from the appellant.
c. On the night of October 9,1989, a person was arrested for possession of marijuana and stated in an interview that the purchase had been made from the appellant one hour earlier and that a quantity of marijuana had been observed in the trailer where the purchase had taken place. The person further stated that he or she had purchased marijuana from the appellant twenty-five times during the past five months ranging from two ounces to one pound.

Printed at the top of the affidavit form was the phrase “Day or Night Time Search.” Beneath the legend were three designated reasons to justify a day or nighttime search with a line beside each one to check:

_(a) The place to be searched is difficult of speedy access; or
_(b) The objects to be seized are in danger of imminent removal; or
_(c) The Warrant can only be safely or successfully executed at night time or under circumstances the occurr[a]nce of which is difficult to predict with accuracy.

The lines beside (a) and (c) had been checked by the officers.

The search-and-seizure warrant signed by the judge also was a printed form, which stated that the search would be carried out between the hours of 6:00 a.m. and 8:00 p.m. At the top of the form was printed “Daytime Search Only.” The word “Daytime” had been scratched through and the word “Nighttime” written in with the date and the judge’s initials.

The sheriff, three deputies, and the police detective then executed the warrant the morning of October .10,1989, between the hours of 2:30 a.m. and 4:15 a.m. They seized a quantity of marijuana, arrested the appellant, and charged him with possession of a controlled substance with intent to deliver.

Before the trial began, the appellant moved to suppress the drugs seized on multiple grounds, including violation of our criminal rules and state and federal constitutional protections against unreasonable searches and seizures. After a suppression hearing, the circuit judge denied the motion, and the appellant was subsequently convicted of the misdemeanor offense.

The appellant’s first argument on appeal is that insufficient facts were presented in the affidavit to support a nightime search under our Rules of Criminal Procedure and that those facts that were presented simply traced the rule and were conclusory. This argument has merit. Our Rules provide three bases for reasonable cause to justify a nightime search:

Upon a finding by the issuing judicial officer of reasonable cause to believe that;
(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nightime or under circumstances the occurrence of which is difficult to predict with accuracy;

Ark. R. Crim. P. 13.2 (1991). Moreover, our cases have consistently held that a factual basis supporting a nighttime search is required as a prerequisite to the issuance of a warrant. See State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991); Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990); State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980).

In State v. Broadway, the affidavit at issue ended with the statement: “Having found reasonable cause to believe that the substance described herein could be removed unless the search is conducted immediately, you are hereby commanded to search the above described premises of property at anytime of the day or night.” The search warrant, which was also on a printed form, contained identical language. We held in Broadway that even though language was included both in the affidavit and search warrant that the substances could be removed, there was no factual basis for that conclusion or to support a nighttime search. We then stated:

An affidavit should speak in factual and not mere conclusory language. It is the function of the judicial officer, before whom the proceedings are held, to make an independent and neutral determination based upon facts, not conclusions, justifying an intrusion into one’s home.

269 Ark. at 218, 599 S.W.2d at 723. We added that we could not construe the potential for removal as described in the affidavit to mean that the property was in imminent danger of removal as Rule 13.2 requires, and we affirmed the circuit court’s suppression of the evidence.

In Hall v. State, sworn testimony was taken before the municipal judge to justify the nighttime search, but it was not recorded. There was nothing in the officer’s affidavit to justify a nighttime search or to satisfy Rule 13.2. The judge issued the warrant and noted in his handwriting that it could be served any time, day or night. The warrant was then executed between the hours of 1:00 a.m. and 3:00 a.m. Again, we held that the affidavit must describe facts showing reasonable cause to believe that circumstances exist which justify a nighttime search, and this the officer had failed to do. We further held that this lapse was a substantial violation under our Rules which necessitated suppression of the seized evidence. See Ark. R. Crim. P.16.2 (1991).

In State v. Martinez, the affidavit for search warrant was silent on grounds supporting reasonable cause, and we held that the conduct of a nighttime search without factual justification was a substantial violation warranting suppression under our Rules.

In the case before us, the officers merely placed checks on two lines in front of conclusory statements to establish reasonable cause. Ironically, the line beside the statement that the objects to be seized were “in danger of imminent removal” was not checked. It is clear that the affidavit form was drafted to mirror the bases for reasonable cause set out in Rule 13.2. Indeed, the language is virtually the same. In sum, the affidavit was bare-bones, as it related to the nighttime search.

Our holdings in Broadway, Hall, and Martinez require more than the officers provided in this case. Under those holdings, conclusory statements did not suffice to establish the requisite factual basis for reasonable cause. The same is true in this case. We, therefore, hold that the two statements “checked” were conclusory and unsupported by sufficient facts and, accordingly, did not establish reasonable cause for a nighttime search. Without sufficient factual premises, it was impossible for the municipal judge to make an intelligent finding of reasonable cause to justify a nighttime search. The circuit court, in reviewing the affidavit, did find that the municipal judge had sufficient facts before her to establish reasonable cause and noted that the affidavit referred to the difficulty of speedy access and the need for a safe and successful execution to occur at night. However, this was clear error due to the lack of a factual basis for the two conclusions for the reasons already stated.

We turn next to the issues of whether this failure to establish reasonable cause with sufficient facts was a substantial violation of our Rules so as to warrant suppression of the evidence obtained. We hold that it was a substantial violation. In determining such a violation, our Rules require that the circuit court consider the following:

(i) the importance, of the particular interest violated;
(ii) the extent of deviation from lawful conduct;
(iii) the extent to which the violation was willful;
(iv) the extent to which privacy was invaded;
(v) the extent to which exclusion will tend to prevent violations of these rules;
(vi) whether, but for the violation, such evidence would have been discovered; and
(vii) the extent to which the violation prejudiced moving party’s ability to support his motion, or to defend himself in the proceedings in which such evidence is sought to be offered in evidence against him.

Ark. R. Crim. P. 16.2 (1991).

The trinity of cases previously cited — State v. Martinez, Hall v. State, and State v. Broadway — all held that substantial violations occurred under Rule 16.2 due to failure to justify a nighttime search with sufficient factual information. The case before us is not markedly different from this precedent. The privacy of the citizens in their homes, secure from nighttime intrusions, is a right of vast importance as attested not only by our Rules but also by our state and federal constitutions. Intrusion without sufficient factual justification under circumstances such as we have here substantially violates our Rules, and our previous cases have so held. Moreover, as was the situation in State v. Martinez, there is nothing in the record before us to indicate that the evidence would not have been there the next morning.

The final issue is whether the executing officers operated in good faith under United States v. Leon, 468 U.S. 897 (1984), and if so, whether that salvages an otherwise defective search and seizure. We have previously held that we would apply the Leon good-faith exception to our criminal rules under appropriate circumstances. See Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990).

In Leon, the Court cited four instances in which suppression of evidence is an appropriate remedy, or, stated differently, where the objective good faith of the officers would not save the warrant:

1. Where the officers misled the issuing judge with information they knew was false or would have known was false, except for reckless disregard of the truth.
2. Where the issuing judge abandons the judicial role of neutrality and detachment and becomes an adjunct law enforcement officer.
3'. Where the officers’ affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.
4. Where the search warrant is facially deficient in failing to identify the place to be searched or things to be seized.

468 U.S. at 923. The Court was also emphatic in its decision that suppression of evidence is designed to deter police misconduct rather than to punish the issuing judges for their errors.

Our concern today is for the integrity of our Rules. If they are to have any meaning relative to nighttime searches, more must be shown the municipal judge than was offered in this case. Subjectively, the executing officers no doubt believed that they were complying with the law because they were using a printed form. Objectively, the affidavit and warrant were lacking in any indicia of a reasonable cause for a nighttime search other than a reiteration of the conclusory language in our Rules. Certainly no factual basis was given, as has already been discussed. We hasten to add that there may have been oral statements to the municipal judge, but as the circuit court correctly stated at the suppression hearing, oral statements were not recorded and, hence, cannot be considered on review.

To conclude, we decline to apply the Leon good-faith exception to this case on the basis that, objectively speaking, the deficiencies in the affidavit should have been a red flag to the officers warning them of a lack of reasonable cause to support the search.

For the foregoing reasons, we hold that the circuit court erred in denying the appellant’s motion to suppress, and we reverse and remand.


text:
    Marvin Gene PEARSON v. STATE of Arkansas
    CR 91-154
    819 S.W.2d 284
    Supreme Court of Arkansas
    Opinion delivered November 25, 1991

      Jack Martin, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

On December 24, 1989, the appellant, Marvin Gene Pearson, entered the trailer of this ex-wife, Janet Pearson, wearing a ski mask and carrying a sawed-off shotgun. His ex-wife, two daughters, a granddaughter, and his son-in-law were present. The appellant threatened death or injury to all present. He was recognized by his son-in-law and eventually took off his mask. He then shoved Janet Pearson against the refrigerator and hit her with the butt of the shotgun. Following that, he forced everyone to the back of the trailer except his ex-wife, whom he took into the bedroom.

One of the daughters called the police. When the officers arrived, the appellant coerced Janet Pearson at gunpoint to leave with him in her truck. She drove while the appellant held the shotgun to her head, and the police gave chase. At some point the appellant decided to change seats with his ex-wife, and this caused the truck to run off the road and into a fence. Janet Pearson left the truck and ran to a nearby police car. The appellant escaped from the wreck and was apprehended several weeks later in Phoenix, Arizona.

The state charged the appellant with multiple crimes, including kidnapping, burglary, terroristic threatening, aggravated assault, felon in possession of a firearm, and fleeing, all of which resulted from the episode just described. He was found not guilty of possession of a firearm, and the fleeing charge was nolle prossed. The appellant was convicted of the remaining charges and sentenced to twenty years for kidnapping, ten years for burglary, six years for terroristic threatening, and one year for assault.

Two issues are raised on appeal, but, finding no merit in either, we affirm.

The appellant first argues that the trial court erred in not giving AMI Crim. 1702-P, relating to whether the appellant released Janet Pearson voluntarily at the scene of the accident. In this regard, the appellant testified that he let her go unharmed after the wreck. He failed, however, to proffer an instruction. He further failed to abstract the desired instruction as part of his appeal. These lapses are fatal to his argument on appeal.

We have held that the failure to proffer an instruction results in the issue’s not being preserved for appeal. See, e.g., Hart v. State, 301 Ark. 200, 783 S.W.2d 40 (1990). Moreover, failure to abstract the requested instruction leaves us somewhat in the dark about the exact contents of what was precisely wanted in the way of an instruction. This pertains even to a model instruction which typically is a printed form that must be completed and tailored to the facts of the particular case. Because the desired instruction is not abstracted for our benefit, the abstract is deficient under our Supreme Court Rule 9(d), and we will not consider the merits of the point raised. See Samples v. Samples, 306 Ark. 184, 810 S.W.2d 951 (1991 ), see also Johnson v. State, 17 Ark. App. 125, 704 S.W.2d 647(1986).

The appellant, secondly, argues that convictions for kidnapping and terroristic threatening overlap and, accordingly, he was unduly penalized. We also do not reach the merits of this issue because the appellant failed to raise it before the circuit court. We have held that we will not consider the issue of overlapping convictions when raised for the first time on appeal except in death cases. See Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983). There is no reason for us to abandon our position in the case before us.

Affirmed.