author: ANNABELLE CLINTON Imber, Justice. LAVENSKI R. SMITH, Justice,

text:
    Bobby ROBERTS, Individually, and On Behalf of Arkansans to Protect Police, Libraries, Education, & Services v. Sharon PRIEST, Secretary of State, Respondent; John Hoyle, Individually and On Behalf of Arkansas Taxpayers Rights Association
    00-485
    20 S.W.3d 376
    Supreme Court of Arkansas
    Opinion delivered July 7, 2000
    [Petition for rehearing denied September 7, 2000.]

      Friday, Eldredge & Clark, by: Elizabeth Robben Murray and Robert S. Shafer, for petitioner.

      Tim Humphries, General Counsel, Arkansas Secretary of State; Mark Pryor, Att’y Gen., by: Dennis R. Hansen, Ass’t Att’y Gen., for respondent.

      Oscar Stilley, for intervenor.
   ANNABELLE CLINTON Imber, Justice.

This is an original stice. petitioner seeks early review of a proposed constitutional amendment pursuant to Act 877 of 1999. Petitioner Bobby Roberts acts on behalf of himself and Arkansans to Protect Police, Libraries, Education & Services (APPLES), a ballot-question committee. The measure before us is a proposed amendment that would abolish all ad valorem taxes, increase the statewide sales tax, and alter the manner in which all taxes within the State are increased or decreased. Mr. Roberts charges that the popular name and ballot title are misleading, and that the proposed measure, if enacted, would be invalid. We agree that the popular name and ballot title are misleading and enjoin the Secretary of State from placing the proposed measure on the ballot.

1. Sufficiency of the Popular Name and Ballot Title

Our current State Constitution recognizes that various political subdivisions of this State levy ad valorem property taxes. See Ark. Const, art. 12, § 4; art. 14, § 3 (as amended by amends. 11, 40, and 74); art. 16, § 5 (as amended by amend. 71); art. 16. § 14; art. 19, § 27; amends. 30 and 38 (as amended by amend. 72); amend. 62. These taxes have traditionally been available to local governmental entities as security for capital improvement bonds and they are a source of revenue for public school districts throughout the State. See, e.g., Ark. Code Ann. § 14-142-201 et seq. (Local Government Library Bond Act); § 14-164-301 et seq. (Local Government Bond Act); § 26-80-101 et seq. (Repl. 1998 & Supp. 1999). The proposed constitutional amendment would abolish the ad valorem tax in Arkansas and would raise the State sales tax rate by 1.875 percent to 6 1/2 percent effective January 1, 2001, in order to replace revenue lost by the abolition of ad valorem taxes. It would also abolish all existing constitutional limits on sales tax rates. See Ark. Const, amend. 75 (imposing gross receipts (sales) tax rate of 0.125 percent) and Ark. Code Ann. §§ 26-52-301, -302 (Supp. 1999) (imposing gross receipts (sales) tax rate of 4 1/2 percent).

The proposed amendment would alter the manner in which all taxes, whether levied by the State or a political subdivision of the State, are increased or decreased. Presently, the method of adjusting tax rates within the State depends upon the political entity and the type of tax involved. The rates for State property, excise, privilege, and personal taxes in existence at the time amendment 19 to the Arkansas Constitution was adopted may be increased by the General Assembly only if the increase is approved by a majority of the qualified electors voting in an election or, in the case of an emergency, by a three-fourths vote of the members elected to each House of the General Assembly. Ark. Const., art. 5, § 38; ACW, Inc., v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997). Statewide sales taxes, however, may be increased or decreased by a mere majority of the General Assembly. See Ark. Const., art. 5, § 37; ACW, Inc., v. Weiss, supra. A tax approved by the people through the initiative or referendum process may only be amended or repealed by a two-thirds vote of the legislative body. Ark. Const, amend. 7. City and county legislative bodies may levy sales and use taxes, but the taxes must be approved by the voters in an election. See Ark. Code Ann. § 26-74-201 et seq.; § 26-74-301 et seq.; § 26-74- 401; § 26-75-201 et seq.; § 26-75-301 (Repl. 1997 & Supp. 1999). Similarly, an election of qualified voters is necessary to abolish a local sales and use tax; but a city or county may not repeal, abolish, or reduce any local sales and use tax, even by election, if that tax was levied pursuant to these provisions and was pledged as security for the payment of lease rentals or bonds so long as the leases are effective or the bonds are outstanding. Ark. Code Ann. §§ 26-74-210; 26-74-217; 26-74-310; 26-75-210; 26-75-215; 26-75- 310 (Repl. 1997).

The proposed measure before us today, if enacted, would substantially change existing law. It would eliminate ad valorem taxes entirely, and, regardless of the type of tax or political entity involved, would require a super-majority of the legislative body plus a majority of qualified voters to approve any tax increase. Only a simple majority of the legislative body, without an election, would be required to approve a decrease. Local school districts, which are only authorized to levy ad valorem taxes, would lose all existing authority to levy taxes by the abolition of ad valorem taxation. See Ark. Const. amend. 74; Ark. Code Ann. § 26-80-101 et seq. (Supp. 1999). It is not our purpose to examine the relative merit or fault of the proposed changes in the law. Our function is merely to review the measure to ensure that, if it is presented to the people for consideration in a popular vote, it is presented fairly. Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988); Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952).

The popular name of the proposed amendment reads:

AN AMENDMENT TO ABOLISH AD VALOREM PROPERTY TAXES, INCREASE SALES TAX, REMOVE ALL CONSTITUTIONAL CAPS ON SALES TAX, REQUIRE 3/4 LEGISLATIVE APPROVAL AND MAJORITY VOTER APPROVAL OF ANY SALES TAX INCREASES AND ALLOW LEGISLATIVE BODIES TO DECREASE SALES TAX BY A SIMPLE MAJORITY VOTE.

The ballot title, as modified by the Office of the Attorney General, reads:

AN AMENDMENT TO THE ARKANSAS CONSTITUTION ABOLISHING ALL AD VALOREM TAXES AND ASSESSMENTS UPON REAL AND PERSONAL PROPERTY BY THE STATE OF ARKANSAS AND ALL OF ITS POLITICAL SUBDIVISIONS AND IMPROVEMENT DISTRICTS AS OF DECEMBER 31, 2000; PROHIBITING THE ASSESSMENT, LEVY, AND COLLECTION OF SUCH TAXES AFTER DECEMBER 31, 2000; DISCHARGING AS SOON AS REASONABLY POSSIBLE ALL OFFICERS AND EMPLOYEES EMPLOYED IN THE APPRAISAL, ASSESSMENT, AND COLLECTION OF PROPERTY TAXES EXCEPT THOSE NECESSARY FOR THE COLLECTION OF DELINQUENT TAXES; CLOSING OR CONVERTING TO OTHER USES ALL OFFICES RELATED TO ASSESSMENT AND COLLECTION OF AD VALOREM TAXES NO LATER THAN APRIL 1, 2001; INCREASING THE RATE OF STATE SALES TAX TO SIX AND ONE-HALF PERCENT (6-1/2 %) EFFECTIVE JANUARY 1, 2001 FOR THE PURPOSE OF REPLACING REVENUE LOST BY THE ABOLITION OF AD VALOREM TAXES ON REAL AND PERSONAL PROPERTY; ABOLISHING ALL EXISTING CONSTITUTIONAL LIMITS ON SALES TAX RATES AS OF JANUARY 1, 2001; PROVIDING THAT AS OF DECEMBER 31, 2000, THE INCREASE OF ANY TAX, LICENSE, OR FEE BY THE STATE OR ANY OF ITS POLITICAL SUBDIVISIONS OR IMPROVEMENT DISTRICTS MUST HAVE THE APPROVAL OF 3/4 OF THE MEMBERS OF THE LEGISLATIVE BODY LEVYING THE TAX AND APPROVAL OF A MAJORITY OF THE QUALIFIED ELECTORS OF THE POLITICAL SUBDIVISION TAXED VOTING IN A REGULARLY SCHEDULED STATEWIDE ELECTION; PROVIDING THAT ANY SALES TAX LEVIED OR COLLECTED BY THE STATE OR ANY OF ITS POLITICAL SUBDIVISIONS MAY BE DECREASED WITH THE APPROVAL OF A SIMPLE MAJORITY OF THE MEMBERS OF THE LEGISLATIVE BODY LEVYING THE TAX; DECLARING THAT THE PROVISIONS OF THE AMENDMENT SHOULD BE LIBERALLY CONSTRUED IN FAVOR OF THE TAXPAYER; RENDERING THE PROVISIONS OF THIS AMENDMENT SEVERABLE; REPEALING ALL LAWS AND CONSTITUTIONAL PROVISIONS WHICH CONFLICT WITH THIS AMENDMENT; AND DECLARING THE PROVISIONS OF THIS AMENDMENT SELF-EXECUTING.

The full text of the proposed amendment is set out in an addendum to this opinion.

On April 24, 2000, the Respondent Secretary of State issued a declaration that the popular name and ballot title of the proposed measure before us are fair and accurate and that the measure, if subsequently approved, would be valid. Mr. Roberts challenges this declaration, alleging that the. popular name and ballot title are misleading and that the proposed amendment, if enacted, would be invalid because it is an unconstitutional impairment of contract. These allegations are controverted by the Respondent Secretary of State and by the Intervenor John Hoyle, individually, and on behalf of Arkansas Taxpayers Rights Association, the sponsor of this initiated measure.

“The sufficiency of all State-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes.” Ark. Const, amend. 7. We attach some significance to the Attorney General’s modification and certification of a ballot title, but we do not defer to the Attorney General’s opinion or give it presumptive effect. Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 338 (1996); Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994).

Ultimately, the central question to be resolved by this court is whether, in the voting booth, the voter is able to reach an intelligent and informed decision for or against the proposal and to understand the consequences of his or her vote based on the ballot title itself. Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994). The standards which this court employs in making this determination are well established:

On the one hand, it is not required that the ballot title contain a synopsis of the amendment or statute. Sturdy v. Hall, 204 Ark. 785, 164 S.W.2d 884. It is sufficient for the title to be complete enough to convey an intelligible idea of the scope and import of the proposed law. Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356, 44 S.W.2d 331. We have recognized the impossibility of preparing a ballot title that would suit every one. Hogan v. Hall, 198 Ark. 681, 130 S.W.2d 716. Yet, on the other hand, the ballot title must be free from “any misleading tendency, whether of amplification, of omission, or of fallacy,” and it must not be tinged with partisan coloring. Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81.

Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952). The burden of proof is “upon the person or persons attacking the validity of the petition.” Ark. Const. amend. 7; Christian Civic Action Comm. v. McCuen, supra.

We liberally construe Amendment 7 in determining the sufficiency of ballot tides. Christian Civic Action Comm. v. McCuen, supra; Bailey v. McCuen, supra; Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980). But, if statements contained in the ballot tide have a tendency to mislead the voter so as to thwart a fair understanding of the issues presented, the ballot title is insufficient. Bailey v. McCuen, supra.

Unlike the ballot title, the popular name is primarily a useful legislative device. Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 338 (1996). Its purpose is to identify the proposal for discussion prior to election. Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988); Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984); Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950). The popular name is not held to the same stringent standards and need not be as explicit as a ballot title, yet it may not contain language that is misleading or partisan. Arkansas Women’s Political Caucus v. Riviere, supra; Mason & Lamb v. Jernigan, 260 Ark. 385, 540 S.W.2d 851 (1976); Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960); Pafford v. Hall, supra. When we review the sufficiency of a ballot title and popular name, we construe the two provisions together. Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958); Bradley v. Hall, supra. With these standards in mind, we must determine whether a voter called upon to exercise an intelligent vote would be able to understand the scope and import of this proposed measure when faced at the polls with only the ballot title and popular name which have been presented to this court for review. Bradley v. Hall, supra.

We first address the popular name as it relates to Section Two of the proposed amendment. The text of Section 2, entitled “Increase in Sales Tax,” states in relevant part:

As of December 31, 2000 no tax, license, or fee, levied or collected by the State of Arkansas or any of its political subdivisions, including, but not limited to county and municipal governments, school districts, improvement districts, fire, library or service districts, may be increased without the approval of 3/4 of the members of the legislative body or bodies levying the tax and the approval of a majority of the qualified electors of the political subdivision taxed, voting upon the issue in a regularly scheduled statewide election.

(Emphasis added.) Similarly, the ballot title states, with regard to Section Two: “An amendment to the Arkansas Constitution . . . providing that as of December 31, 2000, the increase of any tax, license, or fee by the State or any of its political subdivisions or improvement districts must have the approval of 3/4 of the members of the legislative body levying the tax and approval of a majority of the qualified electors of the political subdivision taxed voting in a regularly scheduled statewide election.” (Emphasis added.)

The difficulty with Section Two arises because the popular name states: “An amendment to ... require 3/4 legislative approval and majority voter approval of any sales tax increases....” (Emphasis added.) This reference to “any sales tax increases” in the popular name may be consistent with the title of Section 2. However, it is clearly misleading as to the scope and import of Section Two of the proposed amendment. Voters reading the popular name are told that the amendment to the procedures for raising taxes applies only to sales taxes; whereas, the ballot title refers to the amended procedures for increasing any taxes. When presented with these two interpretations of the same measure, the voter cannot know which provision is controlling. If the voter is unable to ascertain that the measure will affect the manner of increasing all forms of taxation within the State, then the voter cannot understand the scope and ultimate consequences of voting for the measure. By limiting the scope of the popular name to sales taxes only, the popular name contains language that is misleading.

We next consider both the popular name and the ballot title as they relate to Section Three of the proposed amendment. The text of Section Three, entitled “Decrease in Tax,” provides in relevant part that:

Any tax levied or collected by the State of Arkansas or any of its political subdivisions..., including the six and one-half percent sales tax set by this amendment, may be decreased with the approval of a simple majority of the members of the legislative body or bodies levying the sales tax.

(Emphasis added.) However, both the popular name and the ballot title limit their scope to sales taxes only. The popular name states that the amendment would “allow legislative bodies to decrease sales tax by a simple majority vote.” (Emphasis added.) The ballot title states that “any sales tax levied or collected by the State or any of its political subdivisions may be decreased with the approval of a simple majority of the members of the legislative body levying the tax.” (Emphasis added.)

Again, by limiting the popular name and ballot title to sales taxes, the provisions are rendered misleading and insufficient. The voter cannot know the scope and import of this measure if the voter is told that it will only affect sales taxes. Sales taxes are only one of many taxes levied or collected by the State and its subdivisions. The voter is not told by either the popular name or the ballot tide that the vote being cast will affect all forms of taxation. Accordingly, we are convinced that the “sales tax” language in the popular name and ballot title has a tendency to mislead when compared with the text of Section Three.

We note that Mr. Hoyle asserts that the drafters of the proposed amendment intended to cover only sales tax in the text of Section Three and that the omission of the word “sales” from the beginning of that section is a typographical error. Our function in the present litigation is not to interpret the amendment itself. Mason v Jernigan, 260 Ark. 385, 540 S.W.2d 851 (1976). In Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988), we succinctly summarized our function in reviewing the sufficiency of the popular name and ballot title for a proposed constitutional amendment:

It is not our function in the present litigation to interpret the amendment or explain how it is to be implemented. Neither is it our purpose in this opinion to discuss the proposal’s merits or its faults. It is rather our function to see that the popular name and ballot title are a fair and honest means of presenting this measure to the people for their consideration. We must simply determine whether the sponsors of the proposed amendment have complied with the law, and whether the popular name and ballot tide fairly represent the issue which will be presented to the electors.

Id., 296 Ark. at 510, 758 S.W.2d at 401. Thus, we must decline to determine the intent of the drafters in connection with a purported typographical error in the text of the proposed amendment.

Mr. Hoyle also asks this court to make a “correction” in the first part of Section Three of the proposed amendment: “The text would begin ‘Any sales tax...’ The underlined word would be added, no other changes would be made.” However, Mr. Hoyle cites no authority whereby this court could rewrite or change the text of a proposed amendment. We have long held that we do not consider arguments without convincing argument or citation to authority in support, where it is not apparent without further research that these arguments are well-taken. Brown v. Arkansas Dep’t of Corr., 339 Ark. 458, 6 S.W.3d 102 (1999). Moreover, we have previously held that the thirty-day cure period provided in Ark. Code Ann. § 7-9-111 (Repl. 2000) applies only in the case of an adverse action on the part of the Secretary of State and has no application to original actions in this court. Roberts v. Priest, 334 Ark. 244, 973 S.W.2d 797 (1998).

Finally, Mr. Hoyle seeks to characterize the errors in the popular name and ballot tide as mere typographical omissions that escaped the attention of the drafters, the Attorney General, and the Secretary of State. We disagree. The text of the proposed amendment itself contributed to the confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed measure. For example, Section Two, which is entided “Increase in Sales Tax”, initially refers to “sales tax,” but then later refers to “no tax, license, or fee.” Similarly, Section Three, which is entided “Decrease in Tax,” initially refers to “any tax,” but then later it refers to “sales tax.” Thus, the terms “sales tax,” “no tax,” and “any tax” are used interchangeably within each section. These internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot tide and to confusion in the ballot tide itself.

2. Timeliness

Mr. Hoyle suggests that we dismiss this original action challenging the sufficiency of the popular name and ballot tide because it is untimely pursuant to Arkansas Code Annotated section 7-9-107(e)(B)(i) and (ii) (Repl. 2000). Section 7-9-107(e)(B)(i) and (ii) provides that challenges to the certification of a proposed ballot title and popular name must be filed no later than forty-five days after the Secretary of State publishes the proposed initiative. The Attorney General certified this measure to the Secretary of State on January 19, 1999, pursuant to section 7-9-107. The Secretary of State first declared it sufficient on May 24, 1999. She issued her declaration pursuant to Act 877 of 1999. After Mr. Roberts submitted a written petition to the Secretary of State on March 23, 2000, pursuant to Ark. Code Ann. § 7-9-503(a)(1), the Secretary of State issued a second declaration of sufficiency on April 24, 2000, pursuant to Act 877 of 1999. Mr. Roberts filed this original action on April 25, 2000. The record, however, does not reflect whether the forty-five day period set forth in section 7-9-107 expired before the commencement of this action on April 25, 2000.

In any event, we declared section 7-9-107(e)(B)(i) and (ii) unconstitutional in Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990). Subsequently, the General Assembly enacted Act 877 of 1999, under which this original action was filed. Act 877 became effective on March 25, 1999, and by its terms applies to all petitions approved by the Attorney General and filed with the Secretary of State pursuant to section 7-9-107 as of March 25, 1999. Ark. Code Ann. § 7-9-506 (a) (Repl. 2000). The forty-five day time-limit set out in section 7-9-107(e)(B)(i) and (ii) is superseded by Act 877, which contains no time limitation for challenges to sufficiency determinations by the Secretary of State. As noted above, the Secretary of State issued both declarations of sufficiency in accordance with Act 877; therefore, Act 877 controls in this matter. Accordingly, this original action is not untimely.

3. Conclusion

In a case of this kind, the Constitution places on this court the responsibility to ensure that the popular name and ballot title of a proposed constitutional amendment fairly represent the issue which will be presented to the electors. It is plainly our duty to declare that the popular name and ballot title of this initiated measure are fundamentally misleading in that they fail to convey an intelligible idea of the scope and import of the proposed measure. Accordingly, we hold the proposed amendment’s popular name and ballot title insufficient to satisfy the requirements of Amendment 7.

Having determined that the ballot title and popular name are deficient, we need not consider the question raised about the validity of the proposed amendment under Article 2, § 17, of the Arkansas Constitution and Article 1, § 10, of the United States Constitution.

The petition is granted and the Secretary of State is enjoined from placing the proposed measure on the election ballot for the November 7, 2000, general election.

Smith, J., concurs.

ADDENDUM

The following is a complete text of the proposed amendment:

Be it enacted by the people of the State of Arkansas:

Section 1. ABOLITION OF PROPERTY TAX - All ad valorem taxes and assessments upon real and personal property, are hereby abolished as of December 31, 2000. No ad valorem tax or assessment shall be made, levied or collected upon property by the State of Arkansas or any of its political subdivisions, including, but not limited to, county and municipal government, school districts, improvement districts, fire, library or service districts, after December 31, 2000. All officers, employees, and agents employed in the appraisal, assessment, and collection of property taxes, except those necessary for the collection of delinquent taxes, shall be discharged as soon as reasonably possible and all offices closed or converted to other use no later than April 1, 2001.

Section 2. INCREASE IN SALES TAX — In order to replace revenue lost by the abolition of all ad valorem tax on real and personal property, state sales tax is hereby increased to six and one-half percent (6-1/2%) effective January 1, 2001. All constitutional limits on sales tax rates, existing prior to this amendment, are hereby abolished as ofjanuary 1, 2001. As of December 31, 2000 no tax, license, or fee, levied or collected by the State of Arkansas or any of its political subdivisions, including, but not limited to county and municipal government, school districts, improvement districts, fire, library or service districts, may be increased without the approval of 3/4 of the members of the legislative body or bodies levying the tax and approval of a majority of the qualified electors of the political subdivision taxed, voting upon the issue in a regularly scheduled statewide election.

Section 3. DECREASE IN TAX — Any tax levied or collected by the State of Arkansas or any of its political subdivisions including, but not limited to county and municipal government, school districts, improvement districts, fire, library or service districts, including the six and one-half percent sales tax set by this amendment, may be decreased with the approval of a simple majority of the members of the legislative body or bodies levying the sales tax. (As used in this section the phrase “legislative body or bodies” shall include, but not be limited to the General Assembly, a Quorum Court, a City Council, a School Board or an Improvement or Service District Board.)

Section 4. SEVERABILITY, GENERAL REPEALER, LIBERAL CONSTRUCTION — The terms of this Constitutional Amendment shall be liberally construed and interpreted in favor of the tax payer. The provisions of this amendment are severable, and if any should be held wholly or partially invalid, the remainder shall stand to the extent not invalid. All laws and constitutional provisions which conflict with this amendment are hereby repealed to the extent that they conflict with this amendment. The provisions of this amendment shall be self-executing.

LAVENSKI R. SMITH, Justice,

concurring. I concur in the result because of the patent inconsistencies between the ballot title, the popular name, and the text of the amendment. Its proponents concede the inconsistencies. If the drafters of the proposed amendment intend for it to mean differently than it reads, it is up to them to correct it. Neither precedent nor prudence authorize this court to edit a proposed constitutional amendment. Judges should not “edit” constitutional provisions either before or after they are made the law of the land. It is nevertheless unfortunate that any initiative of the people is not able to be voted upon by the people.

       Act 877 is codified as Ark. Code Ann. § 7-9-501 et seq. (Repl. 2000).

       Although Mr. Hoyle characterizes this discrepancy between the popular name and the ballot title as a “purely unintentional” oversight, he acknowledges that “it doubtless would have been better if the word ‘sales’ in the term ‘majority voter approval of any sales tax increases’ had simply been omitted from the popular name.”

       We recently held that Act 877 of 1999 “does not run afoul of the provisions of Amendment 7 of the Arkansas Constitution.” Stilley v. Priest, 341 Ark. 329, 337, 16 S.W.2d 251, 256 (2000). In doing so, we overruled Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), “to the extent that [it] prevents] a review of the text of a popular name and ballot title and the validity of the proposed measure prefactory to the gathering of signatures.” Id.


source: Caselaw Access Project

author: ANNABELLE Clinton Imber, Justice.

license: Public Domain

text:
    Scott TATE and Mary Ennis Tate v. Jo BENNETT
    99-1233
    20 S.W.3d 370
    Supreme Court of Arkansas
    Opinion delivered July 7, 2000

      Thomas L. Hilburn, Judge;

      Philip G. Smith, P.A., by: Philip G. Smith, for appellant.

      Lyons, Emerson & Cone, P.L.C., by: Scott Emerson, for appellee.
   ANNABELLE Clinton Imber, Justice.

The natural father ststepmother ice. appeal the Randolph County Chancery Court’s decision to grant the minors’ maternal grandmother visitation rights. On appeal, appellants Scott and Mary Ennis Tate contend that the action by appellee Jo Bennett seeking visitation rights under Ark. Code Ann. § 9-9-215(a)(l) (Repl. 1998) was barred by the one-year statute of limitations in Ark. Code Ann. § 9-9-216(b) (Repl. 1998). We agree and reverse and dismiss.

Scott and Cheryle Tate were a married couple with two children, Savanah and Jay Tate. On January 4, 1993, Cheryle Tate died in an automobile accident and was survived by her husband and two minor children. On May 14, 1994, Scott Tate married Mary Ennis Tate. Subsequently, Mary began proceedings to adopt Scott’s two children. She filed a petition for adoption-on November 22, 1994, and a hearing was held in the Randolph County Probate Court on January 18, 1995. On January 23, 1995, the probate court entered an interlocutory decree of adoption, ordering that Savanah and Jay be adopted by Mary. The final adoption decree was filed on July 3, 1995.

More than two years later, on September 30, 1997, Jo Bennett, the maternal grandmother of Savanah and Jay Tate, filed a complaint in Randolph County Chancery Court seeking custody of the children or, in the alternative, visitation rights. It is undisputed that Mrs. Bennett never received official legal notice of the earlier adoption proceedings. In the complaint, Mrs. Bennett alleged that the children had been physically and mentally abused by the Tates, which may have led to psychiatric treatment for Savanah. The complaint further stated that the children were living in an unstable environment and that Savanah was in danger.'Following a hearing on March 15, 1999, the trial court entered an order, finding that Mrs. Bennett had received no legal notification of the earlier adoption proceedings as required under Ark. Code Ann. § 9-9-212(g), “and her visitation rights therefore shall not be terminated.” The trial court’s order also set out specific dates and times for the children to visit their grandmother, Mrs. Bennett. From that March 23, 1999 order the Tates bring this appeal.

The Tates argue that the trial court erred in awarding Mrs. Bennett visitation rights. Specifically, they argue that the provisions for grandparent visitation contained in Ark. Code Ann. 9-9-215(a)(1) (Repl. 1998) are not applicable in the present case for three reasons. With regard to grandparent visitation, section 9-9-215(a)(1) states in relevant part:

A final decree of adoption ... [has] the following effect as to matters within the jurisdiction or before a court of this state: ... [T]o terminate all legal relationships between the adopted individual and his natural relatives, including his natural parents, so that the adopted individual thereafter is a stranger to his former relatives for all purposes. ... However, in cases where a natural or adoptive parent dies before a petition for adoption has been filed by a stepparent of the minor to be adopted the Court may grant visitation rights to the parents of the deceased natural or adoptive parent of the child if such parents of the deceased natural or adoptive parent had a close relationship with the child prior to the filing of a petition for step-parent adoption, and if such visitation rights are in the best interest of the child.

Ark. Code Ann. § 9-9-215(a)(l) (Repl. 1998).

For one of their three arguments, the Tates contend that Mrs. Bennett is not entitled to visitation under section 9-9-215(a)(1) because she was barred from filing her custody/visitation action by the one-year statute of limitations found in section 9-9-216(b), which states in relevant part:

Subject to the disposition of an appeal, upon the expiration of one (1) year after an adoption decree is issued, the decree cannot be questioned by any person including the petitioner, in any manner, upon any ground, including ... failure to give any required noticef.]

Ark. Code Ann. § 9-9-216(b) (Repl. 1998). The Tates assert that Mrs. Bennett’s action for custody/visitation, which was filed more than one year after issuance of the adoption decree, questions the adoption decree. Mrs. Bennett, on the other hand, asserts that section 9-9-216(b) is not applicable because “[n]either the adoption, nor the decree itself was questioned in this hearing.” We disagree. This court has consistently held that adoption statutes are to be stricdy construed and applied. See, e.g., Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994); Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992). The language of section 9-9-216(b) is broad and reaches “any manner” of attack on the adoption decree based upon “any ground.” Here, Mrs. Bennett was clearly challenging the effect of the adoption decree by claiming rights under section 9-9-215 of the Revised Uniform Adoption Act. Because she did not file her complaint seeking visitation rights within one year of the decree’s issuance, she is now barred from doing so pursuant to section 9-9-216(b).

However, the trial court found that Mrs. Bennett did not receive legal notification of the adoption proceedings as required by Ark. Code Ann. § 9-9-212(g) (Repl. 1993). Although section 9-9-216(b) expressly provides that the one-year statute of limitations applies to challenges based on a failure to give the required notice, we have held that it is a denial of due process to apply the one-year statute of limitations to the natural father of the adopted child if the father was not given notice of the adoption proceedings. McKinney v. Ivey, 287 Ark. 300, 698 S.W.2d 506 (1985). There, the due process violation arose because an unwed father who demonstrates a full commitment to the responsibilities of parenthood acquires substantial protection under the due process clause. Lehr v. Robertson, 463 U.S. 248 (1983). Here, no similar due process violation would arise because the Revised Uniform Adoption Act in effect at the time of the adoption proceedings did not provide for grandparent visitation rights. Ark. Code Ann. 9-9-215 (Repl. 1993). In Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981), this court said: “any rights existing in grandparents must be derived from statutes....” Id. at 304, 619 S.W.2d at 620. Grandparent visitation rights were not added to the adoption statutes until 1995 when the General Assembly enacted Act 889 of 1995, which became effective on July 28, 1995. The notice provisions of sections 9-9-212(a) and (g) required that notice be provided to Mrs. Bennett twenty days before the date of the hearing on the adoption petition. The hearing on the adoption petition occurred on January 18, 1995. Thus, at the time that notice to Mrs. Bennett was required, she had no visitation rights subject to protection by the due process clause. Accordingly, we hold that a due process violation did not result from the lack of notice, and Mrs. Bennett’s action was barred by the one-year statute of limitations in section 9-9-216(b). The trial court erred in ruling otherwise.

In light of our holding that this action is barred by Ark. Code Ann. § 9-9-216(b), we need not address the Tates’ other arguments for reversal.

Reversed and dismissed.

       The record reflects that Mrs. Bennett had frequent contact with Savanah between April 1996 and July 1997 when Savanah was living in Alabama with her natural mother’s sister, Jennifer Taylor.

       The supplemental record reflects that the Juvenile Division of Randolph County Chancery Court transferred legal custody of Savanah to Mrs. Bennett on June 28, 1999.

       When Act 889 was approved on April 4, 1995, it did not contain an emergency clause or a specified effective date. Pursuant to Amendment 7 of the Arkansas Constitution, acts of the General Assembly that do not contain an emergency clause or a specified effective date become effective ninety days after adjournment of the legislative session at which they were enacted. Priest v. Polk, 332 Ark. 673, 912 S.W.2d 902 (1995); State v. Ziegenbein, 282 Ark. 162, 666 S.W.2d 698 (1984). The 1995 regular session of the General Assembly adjourned on April 28, 1995, and Act 889 of 1995 became effective on July 28, 1995. Op. Att’y Gen. No. 95-119.

       Mrs. Bennett might have been able to file for visitation rights under Act 889 of 1995 before the one-year statute of limitations expired. Nonetheless, the statutory notice provisions did not require that notice be given to Mrs. Bennett at any time other than at least twenty days prior to the January 18, 1995 hearing date. Ark. Code Ann. § 9-9-212(a) and (g)-


author: RAY THORNTON, Justice.

text:
    BPS, INC. and Micro Flo Company v. Clarence RICHARDSON, Sylvester King, Vickie Sheppard, and Palestine Fitzgerald et al.

    99-912
    20 S.W.3d 403
    Supreme Court of Arkansas
    Opinion delivered July 7, 2000

      Harvey Yates, Judge;

      Wright, Lindsey & Jennings LLP, by: Gordon S. Rather, Jr., Michael D. Barnes, and Jane M. Faulkner, for appellants BPS, Inc.

      Friday, Eldredge & Clark, by: Frederick S. Ursery and Kevin A. Crass, for appellant Micro Flo Company.

      Don Trimble and Wilson & Valley, by: E. Dion Wilson, for appellee.
   RAY THORNTON, Justice.

This case presents the question stice. required to conduct an analysis of the factors required for certification of a class action under the provisions of Arkansas Rules of Civil Procedure Rule 23 and to enter written findings of fact and conclusions of law when requested by a party to the litigation as provided by Arkansas Rules of Civil Procedure Rule 52. Because we conclude that the answer to this question is affirmative, and because the trial court did not enter specific findings of fact and conclusions of law reflecting an analysis required for certification of a class action, we reverse and remand to the trial court for further proceedings consistent with this opinion.

On May 8, 1997, an explosion and fire occurred at appellant BPS’s agricultural chemical packaging plant in West Helena. The fire continued to burn for several days, and three firemen lost their lives during their efforts to control the fire. One of the chemicals involved in the incident was azinphos methyl, which was supplied to BPS by appellant Micro Flo Company.

On May 9, 1997, Vickie Sheppard and Sylvester King, employees of BPS, who were performing their duties at the time of the explosion, were joined by Clarence Richardson in filing this action. They asserted that they represented “those classes of persons who have been, continue to be, and may in the future be adversely affected by the actions and omissions which are subject of this complaint.”

On February 6, 1998, the three named plaintiffs were joined by Palestine Fitzgerald and five other individuals as plaintiffs seeking certification as representatives of a class including “those persons who suffered or will suffer symptoms of exposure to toxins and/or toxic chemicals.” In addition to seeking compensatory and punitive damages for medical expenses, lost wages, and pain and suffering, the plaintiffs sought recovery for mental and emotional distress and anguish, as well as for spousal loss of consortium, lifelong medical monitoring, a pre-paid medical insurance policy for all those who may incur medical expenses in the future, and other damages to both symptomatic and asymptomatic members of the proposed class. It was estimated that there were one hundred class members in the proposed class.

On April 15, 1998, BPS filed a third-party complaint against Micro Flo Company seeking contribution and/or indemnity if BPS is found to be Hable for the explosion. On January 21, 1999, a third amended complaint was filed. This complaint named Micro Flo, as well as BPS, as a defendant. The complaint alleged that the plaintiffs represented “those classes of persons who have been, continue to be, and may in the future be adversely affected by the toxic chemicals released into the air on May 8, 1997.” The class also included “persons who suffered or will suffer symptoms of exposure to toxins and/or toxic chemicals emitted into the air as a result of the explosion at BPS, Inc” and “class members’ spouses who suffered loss of consortium.” The plaintiffs alleged that the class had 16,000 to 20,000 members. The complaint outlined the following damages: “(a) past and future medical and incidental expenses; (b) past and future pain, suffering and mental anguish; (c) past and future lost earnings and working time; (d) permanent disfigurement; (e) loss of value of all earnings and working time lost in the past and reasonably certain to be lost in the future; (f) the loss of future ability to earn and past and future home caretaking expenses; (g) loss of consortium and permanent bodily injury; (h) any other documented losses as a direct result of the explosion and release of toxic chemicals on May 8, 1997.”

On January 21, 1999, BPS filed a motion pursuant to Rule 52 of the Arkansas Rules of Civil Procedure requesting specific findings of fact and conclusions of law thereon with respect to plaintiffs’ request for class certification. On January 28, 1999, a hearing was held on plaintiffs’ request for class-action certification of their suit. At the hearing, appellees explained to the trial court that they wished to drop five of the named plaintiffs and proceed with only Richardson, King, Sheppard, and Fitzgerald as class representatives. Fitzgerald and Sheppard testified at the hearing and the deposition testimony of Richardson and King was filed for record. Dr. Phillip Goad also testified at the hearing.

On February 11, 1999, the appellants presented to the trial court their proposed findings of fact and conclusions of law. In a letter opinion dated April 14, 1999, and a subsequent order entered May 5, 1999, the trial court granted appellees’ request for class certification. It is from this order that appellants appeal, raising five points of alleged error. We reverse and remand this case to the trial court for an analysis of the factors required for certification of a class action pursuant to Rule 23 of the Arkansas Rules of Civil Procedure and for the entry of specific findings of fact and conclusions of law pursuant to Rule 52 of the Arkansas Rules of Civil Procedure.

In our review of a trial court’s decision to grant class certification, we have said that trial courts are given broad discretion in matters of class certification, and we will reverse the trial court’s ruling only when the appellant can demonstrate an abuse of that discretion. Baker v. Wyeth-Ayerst Laboratories Division, 338 Ark. 242, 992 S.W.2d 797 (1999); SEECO, Inc. v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997); Mega Life & Health Ins. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997).

Rule 23 of the Arkansas Rules of Civil Procedure details the requirements for a class-action suit. It states:

(a) One or more members of a class may sue or be sued as representative parties on behalf of ail only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class', (3) the claims or defenses of the representative parties are typical of the. claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this section may be conditional and it may be altered or amended before the decision on the merits.

Id. We have reviewed the provisions of Rule 23 on numerous occasions and have held that in order for a class-action suit to be certified six factors must be met. Specifically, the party seeking certification must establish: (1) numerosity; (2) commonality; (3) predominance (4) typicality; (5) superiority; and (6) adequacy. See Mega Life, supra. When we review a class-action certification, we will review the trial court’s analysis of the factors upon which certification must be based. Specifically, we have held that:

[W]hether to certify a class “is not ‘whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 . . . are met.’ ” As we observed, “it is totally immaterial whether the petition will succeed on the merits or even if it states a cause of action. ...” Id. “[A]n order denying or granting class certification is separate from the merits of the case.”

Direct Gen. Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997) (citing Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders, 323 Ark. 706, 918 S.W.2d 129 (1996)).

Although we do not delve into the merits of the underlying claims in a potential class-action case, we will review the trial court’s order to determine whether the requirement of Rule 23 are satisfied. The first requirement of class certification is “that the class is so numerous that joinder of all members is impractical.” Ark. R. Civ. P. 23(a)(1). In Cheqnet Systems, Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995), we held that the exact size of the proposed class and the identity of the class members need not be established for the court to certify a class, and the numerosity requirement may be supported by common sense. We have not adopted a bright-line rule to determine how many class members are required to satisfy the numerosity requirement. Mega Life, supra (citing Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991) (approving a class of several thousand claimants)); International Union of Elec., Radio, & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988) (declaring that “at least several hundred” class members were sufficient); Cooper Communities, Inc. v. Sarver, 288 Ark. 6, 701 S.W.2d 364 (1986)(holding that 184 potential class members were enough); City of North Little Rock v. Vogelgesang, 212 Ark. 390, 619 S.W.2d 652 (1981) (rejecting a class of only seventeen potential plaintiffs)).

We note that in the present case appellants do not challenge the number of potential class members, but they do argue that the number of class members cannot be determined because the class definition is too vague.

Rule 23(a)(2) of the Arkansas Rules of Civil Procedure requires a determination by the trial court that “there are questions of law or fact common to the class.” See also, Mega Life, supra. A review of our case law reveals that this requirement is case-specific. Professor Newberg’s treatise on class actions explains that:

[T]he common question prerequisite is interdependent with the notion of joinder impracticability under Rule 23(a)(1). Consideration of the common question issue requires an answer to the question: Common to whom?
Rule 23(a)(2) does not require that all questions of law or fact raised in the litigation be common. The test or standard for meeting the rule 23(a)(2) prerequisite is ... that is there need be only a single issue common to all members of the class.... When the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected.

Herbert B. Newberg, Newberg on Class Actions, § 3.10 (3d ed. 1993). The trial court must determine what elements in a cause of action are common questions for the purpose of certifying a class.

Arkansas Civil Procedure Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Id. This requirement was discussed in detail in Direct General Insurance, supra. We stated that:

[A] representative’s claim is typical of the class members’ claims under' Rule 23(a)(3) if the representative’s claim arises from the same wrong allegedly committed against the class. Quoting a passage from Professor Newberg’s treatise on class actions, we said:
Typicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct. In other words, when such a relationship is shown, a plaintiff’s injury arises from or is directly related to a wrong to a class, and that wrong includes the wrong to the plaintiff. Thus, a plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and as if his or her claims are based on the same legal theory. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of varying fact patterns which underlie individual claims.
Summons v. Missouri Pac. R.R., 306 Ark. at 121, 813 S.W.2d at 243 (quoting Herbert B. Newberg, Newberg on Class Actions, § 3.13, at pp. 166-67 (2d ed. 1985)).

Direct General, supra. We have also held that a class certification is not appropriate when a putative class representative is subject to unique defenses that threaten to become the focus of the litigation. See BNL Equity Corp. v. Pearson, 340 Ark. 351, 10 S.W.3d 838 (2000).

We note that in this case the named representatives do not claim to represent the firemen who lost their lives. It is unclear whether the two proposed class representatives who were BPS employees at the time of the accident, and who may be entitled to workers’ compensation benefits, may be subject to certain defenses that would impair them from acting as class representatives. We further note that the trial court may need to address whether any of the other named class representatives are subject to unique defenses which could become the focus of the litigation when it is evaluating whether the proposed class satisfied the Rule 23 requirement for typicality. An analysis of this factor is essential.

Arkansas Civil Procedure Rule 23(a)(4) states that a trial court must determine whether the class representatives “will fairly and adequately protect the interests of the class.” Id. We have previously explained that the three elements of this requirement are that: (1) the representative counsel must be qualified, experienced and generally able to conduct the litigation; (2) there be no evidence of collusion or conflicting interest between the representative and the class; and (3) the representative must display some minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision making as to the conduct of the litigation. Mega Life, supra. We have noted that the “adequacy of representation” element is satisfied if the representatives display a minimal level of interest in the action, familiarity with the challenged practices, and ability to assist in litigation decisions. See Chequet, supra. We have also held that absent a showing to the contrary, we will presume that the representative’s attorney will vigorously and competently pursue the litigation. Mega Lfe, supra. Finally, a trial court may also consider it necessary, in its analysis of this requirement for class certification, to resolve any questions of reluctancy on the part of named class representatives to comply with requirements of disclosure or participation in discovery requests during the pendency of the litigation.

In the present case, we note that in its order the trial court stated, “the representative parties with the possible exception of Ms. Sheppard would appear to be able to fairly and adequately protect the interests of the class.” An analysis of this case should articulate the reasons upon which the trial court determined that the representative parties meet the requirements of Rule 23(a)(4).

Arkansas Civil Procedure Rule 23(b) requires that “the questions of law or fact common to the members of the class predominate over any question affecting only individual members.” Id. We have held that the starting point for our examination of the predominance issue is whether a common question of law or fact exists in the case for all class members. BNL, supra. The next issue is whether this question predominates over individual questions. Id. We have also noted that when deciding whether the common questions of law or fact predominate over other questions affecting only individual members, we do not merely compare the number of individual versus common claims. Baker, supra. Instead, we must decide if the issues common to all plaintiffs “predominate over” the individual issues, which can be resolved during the decertified stage of a bifurcated proceeding. See Seeco, supra; Mega Life, supra. In Baker, a class-action case involving diet drugs which caused injuries to the patients taking the drugs, we reviewed the predominance requirement in the context of a mass tort action. We held that:

[M]ass-tort actions, however, present unique certification problems because they generally involve numerous individual issues as to the defendant’s conduct, causation, and damages. Courts, however, have recently distinguished between two different types of mass-tort actions: 1) mass-accident cases where injuries are caused by a single catastrophic event occurring at one time and place; and 2) toxic-tort or products-liability cases where the injuries are a result of a series of events occurring over a considerable length of time and under different circumstances. See JAMES W. MOORE, Moore’s Federal Practice § 23.47[4] (3d. ed. 1999); Herbert B. Newberg & Alba Conte, Newberg on Class Actions§§ 17.01 to 17.06 (3d ed. 1992); Charles Alan Wright et al., Federal Practice and Procedure § 1783 (2d ed. 1986). Due to the enormity and complexity of the individual issues presented by toxic-tort and products-liability cases, class certification is more common in mass-accident cases than in toxic-tort or products-liability case. See JAMES W. MOORE, supra § 23.47[4] (citing numerous products-liability and toxic-tort cases where class certification was denied); Herbert B. Newberg & Alba Conte, supra § 17.22 (citing several products-liability cases involving tetracycline, bendectin, and DES where class certification was denied). In this regard, the Sixth Circuit has admonished that a court should “question the appropriateness of a class action” where “no one set of operative facts establishes liability, no single proximate cause equally applies to each potential class member and each defendant, and the individual issues outnumber common issues.” Sterling v. Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir. 1988).
Likewise, we have been more inclined to approve class certification in mass-accident cases than in products-liability or toxic-tort cases. For example, we allowed class certification in the mass-accident case of Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991). In Summons, several thousand people were evacuated from their homes when a train owned by Missouri Pacific overturned and released chemicals into the area. Id. The plaintiffs alleged that Missouri Pacific was willfully and wantonly negligent and strictly liable for shipping ultra hazardous products. Id. We held that class certification was proper because the common issues of the defendant’s conduct, whether the chemicals were ultra hazardous, and causation predominated over and could be resolved prior to addressing the individual and less difficult issues of damages and injuries. Id.

Baker, supra.

In Baker, we also cited with favor the United States Supreme Court’s language from Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S. Ct. 2231 (1997) regarding the predominance requirement of Rule 23(b). We noted:

In Amchem, the plaintiffs filed a class action on behalf of possibly millions of people who were exposed to asbestos. Id. The plaintiffs argued that class certification was proper because all members of the class had been exposed to asbestos products supplied by the defendants. Id. The Court responded as follows:
Even if Rule 23 (a)’s commonality requirement may be satisfied by that shared experience, the predominance criterion is far more demanding. Given the greater number of questions peculiar to the several categories of class members, and to individuals within each category, and the significance of those uncommon questions, any overarching dispute about the health consequences of asbestos exposure cannot satisfy the Rule 23(b)(3) predominance standard.
Id. (emphasis added).
The Court further opined that class certification was improper because the class members:
were exposed to different asbestos-containing products, for different amounts of time, in different ways, and over different periods. Some class members suffer no physical injury or have only asymptomatic pleural changes, while others suffer from lung cancer, disabling asbestosis, or from mesothelioma.... Each has a different history of cigarette smoking, a factor that complicates the causation inquiry.
Id. (quoting the Third Circuit’s earlier decision in this same case, Georgine v. Amchern Products, Inc., 83 F.3d 610 (3rd Cir. 1996) (emphasis added)). Finally, the Court called for caution in the certification of mass-tort cases when “individual stakes are high and disparities among class members great.” Id.

Baker, supra.

Finally, Rule 23(b) of the Arkansas Rules of Civil Procedure also requires that a class action be superior to other available methods for the fair and efficient adjudication of the controversy. See, Seeco, supra. We have held that the superiority requirement is satisfied if class certification is the more “efficient” way of handling the case, and it is fair to both sides. Baker, supra. Where a cohesive and manageable class exists, we have held that real efficiency can be had if common, predominating questions of law or fact are first decided, with cases then splintering for the trial of individual issues, if necessary. Seeco, supra; See also Summons, supra. We further note that when a trial court is determining whether class-action status is the superior method for adjudication of a matter it may be necessary for the trial court to evaluate the manageability of the class. See BNL, supra, (holding after a review of the trial court’s well-reasoned twenty-four-page order that a class action was properly certified). See also The Commonwealth of Puerto Rico v. Emily, 158 F.R.D. 9 (P.R. 1994) (holding that a proposed class was unmanageably broad).

Remaining mindful of our well-established rules surrounding class-action certification, we turn to appellants’ arguments on appeal. Appellants contend that the trial court abused its discretion when it certified this case as a class action. Specifically, appellants argued that the proposed class: failed to meet the typicality requirement of Rule 23(a)(3); failed to establish that the representative parties would fairly and adequately represent the interest of the class pursuant to Rule 23(a)(4); failed to meet the predominance requirement of Rule 23(b); and failed to establish that a class action was the superior method for adjudication of this case.

Appellants also alleged that this case should be reversed and remanded because the trial court failed to make specific findings of fact and conclusions of law pursuant to Rule 52 of the Arkansas Rules of Civil Procedure. Appellees responded to this argument by contending that a motion for class certification is merely a motion and as such is not subject to Rule 52. However, appellees contention is misplaced. In Mega Life Health Ins. Co. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997), we addressed an argument identical to the one now being raised by appellants. Specifically, we held:

First, Mega asserts that we must reverse the certification order because the trial court failed to make specific findings regarding the existence of the Rule 23(b) requirements of predominance and superiority. This issue is governed by Ark. R. Civ. P. 52(a) which states that “findings of fact and conclusions of law are unnecessary on decisions of motions under these Rules,” but that the court shall enter such specific findings and conclusions upon the request of a party. It does not appear from the abstract that Mega ever requested that the court make such specific findings in regard to the predominance and superiority requirements of Rule 23(b).
Moreover, Rule 52(b) states that upon a motion of a party made no later than ten days after the entry of judgment, the court may amend its findings of fact or make additional findings. Thus, Mega had ten days after the order of certification was entered to ask the trial court to make additional findings regarding the Rule 23(b) elements. Mega, however, failed to make such a request. Because Mega failed to request specific findings in regard to the Rule 23(b) elements either prior to or after the entry of the order of certification, we hold that it has waived this issue on appeal.
Id. (internal citations omitted).

In this case, a request for specific findings was made pursuant to Arkansas Rule of Civil Procedure 52, which states in relevant part:

[I]f requested by a party, in all contested actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon....

Id. This rule has been interpreted to mean that “if findings under Rule 52(a) are timely requested, the trial court is required to make specific findings of fact and conclusions of law and to file the same with the clerk of the trial court so that such findings may be made part of the record.” McWhorter v. McWhorter, 70 Ark. App. 41, 14 S.W.3d 528 (2000). Our court of appeals has held that this “rule does not place a severe burden upon the trial judge, for he needs only to make brief, definite, pertinent findings and conclusions upon the contested matters.” McClain v. Giles, 271 Ark. 176, 607 S.W.2d 416 (1980) (emphasis added) (a case that was reversed and remanded because the appellant requested Rule 52 findings and the trial court failed to set forth findings of fact, which it relied on for calculation of appellant’s child-support obligation).

We note that on January 21, 1999, four months before the trial court’s May 5th order, appellants filed a motion requesting specific findings and conclusions. The motion stated:

Pursuant to Rule 23 and Rule 52 of the Arkansas Rules of Civil Procedure, defendant BPS, Inc. requests specific findings of fact and conclusions of law thereon with respect to plaintiffs’ request for class certification, the requirements for class certification in Rule 23(a)and (b), and any order entered by the Court granting or denying class certification.

Additionally, on February 11, 1999, appellants BPS and Micro Flo submitted to the trial court fourteen pages of proposed findings of fact and conclusions of law. In response to appellants’ motions, the trial court filed the following letter opinion:

The trial court finds that plaintiffs have shown that the proposed class of plaintiffs is so numerous that joinder of all members is impracticable.
The plaintiffs and the proposed class of plaintiffs will be seeking damages from defendants because of the fire and explosion at the BPS plant on or about May 8, 1997, and the alleged release of chemicals into the air. Almost all of the class will be seeking damages as a result of an alleged exposure to chemicals released from the plant as a result of the explosion. The court recognizes that the damage claims of the individuals of the class will differ. The Court is of the opinion that there are questions of law or fact common to the class.
The claims of the representative parties appear to be typical of the claims of the class in that they all would appear to be claiming damages as a result of the fire and explosion and release of chemicals into the air. It may be that some will not be able to participate in the class or be a representative of the class if it is determined that their alleged injury arose out of and in the course of their employment and is covered by Workers Comp. However, this should not prevent there being questions of law and fact common to those not employed by defendants or not claiming damages as a result of said employment.
The representative parties with the possible exception of Ms. Sheppard would appear to be able to fairly and adequately protect the interest of the class.
The court finds that the prerequisites of Rule 23(a) have been met.
The court finds that in accordance with Rule 23(b) that the questions of law or fact common to the members of the class predominate over those questions affecting only individual members. The court finds that a class action is superior to other available methods for a fair and efficient adjudication of all the actual and potential claims resulting from the occurrence.

We conclude that this order does not meet the mandatory requirements of Rule 23. Specifically, evaluating the trial court’s order we cannot be certain of: (1) the number of members in the class which the trial court used to determine whether the numerosity requirement was met (estimated size of the class ranged from 100 members to 20,000 members); (2) what the trial court found to be the “common questions of law or fact”; (3) what claims the trial court found to be held by the representative parties which would be “typical” of the claims of the proposed class and whether such claims would be subject to defenses not applicable to all members of the class; (4) why the named plaintiffs’ claims predominate over claims held by individual class members; (5) why the trial court found that the representative parties would fairly and adequately represent the class; or (6) why the trial court found that a class action is “superior to other available methods for a fair and efficient adjudication of all the actual and potential claims.”

Here, the trial court’s order does not provide the parties or this court with an analysis of the requirements of Rule 23 or specific factual findings of fact or conclusions of law pursuant to Rule 52. Because it failed to comply with these requirements we conclude that the trial court has abused its discretion in certifying this case for class-action status. For a class action to serve the purpose of an efficient and fair means of resolving claims arising out of the same circumstances, these issues must be analyzed Accordingly, we reverse and remand this case to the trial court for analysis and findings as required by Rule 23 and Rule 52 of the Arkansas Rules of Civil Procedure.

Reversed and remanded.

Glaze, J., concurs.


author: RAY Thornton, Justice.

text:
    ST. PAUL FIRE & MARINE INS. CO. v. FIRST BANK OF ARKANSAS, Personal Representative of the Estate of Cody Patrick Lane, Deceased, and Steven Frank Seitz, Deceased
    99-1021
    20 S.W.3d 372
    Supreme Court of Arkansas
    Opinion delivered July 7, 2000

      William Mills, Judge;

      Friday, Eldredge & Clark, by: Donald H. Bacon and Robert S. Shafer, for appellant.

      Boyett & Morgan, P.A., by: Comer Boyett, for appellee.
   RAY Thornton, Justice.

Appellant St. Paul Fire and stice. Company brings this appeal of the decision of the White County Circuit Court awarding First Bank of Arkansas satisfaction of a judgment against an alleged insured of St. Paul on the grounds that the automobile liability policy in question was in force and effect at the time of the accident giving rise to the claim. Because we have determined that the trial court correctly found that the policy had not been canceled prior to the accident, we affirm on the appeal. The cross-appeal of First Bank is affirmed as well.

Both parties having waived a jury, the case went before the trial judge on stipulated facts. The parties agree that appellant issued a policy of garage liability insurance to Conway Auto Exchange, Inc., effective April 17, 1995, through April 17, 1996. The insurance policy was purchased by Terry Kenyon, president of Conway Auto, through his agent, the Robinson-Adams Insurance Agency in Birmingham, Alabama. The policy provided coverage for automobiles licensed to Conway Auto. Kenyon called Carl Warren, an employee of Robinson-Adams, to request cancellation of the Conway Auto policy, suggesting an effective date for cancellation of June 16, 1995. The policy provided the following rules with regard to cancellation: “To cancel, the first named insured must deliver the policy or the part to be canceled to any of our authorized agents. If this isn’t possible notify us by mail and include the date coverage is to end. We’ll refund the unused premium . . .

In a letter dated June 28, 1995, Warren wrote to Kenyon that he had “been successful in talking St. Paul into giving us pro rata cancellation on Conway’s policy ... we will owe you a small refund once the cancellation is processed. . . . Please sign the enclosed Cancellation Release Form and return it to me as soon as possible” [Emphasis added]. Accompanying this letter was a document entitled “Cancellation Request/Policy Release.”

Sometime after June 28, 1995, the cancellation and release form was signed by Kenyon, as president of Conway Auto, witnessed by his wife Rhonda, and mailed to Warren. The handwritten date on each of Terry and Rhonda Kenyon’s signatures was backdated to June 16, 1995. The executed release form was received by Warren on July 6, 1995, and then mailed to St. Paul, where it was received on July 10, 1995. In August, St. Paul returned to Kenyon a check for the amount of the unearned premium. However, on July 4, 1995, Terry Kenyon was involved in an automobile collision resulting in the deaths of Cody Lane Patrick, an infant, and Steven Frank Seitz. At the time of the accident, Kenyon was legally drunk and driving an automobile licensed to Conway Auto, en route from a party with business guests.

Appellee First Bank of Arkansas, acting as representative of the estates of Patrick and Seitz, brought an action for damages against Kenyon and Conway Auto. Conway Auto made a coverage demand upon St. Paul, which was refused on the grounds that the policy had been canceled at the insured’s request as of June 16, 1995. First Bank ultimately obtained a judgment against Terry Kenyon and Conway Auto, jointly and severally, in the amount of $1,425,000, including $1 million in punitive damages. First Bank, acting as subrogee of Conway Auto, then filed this direct action against St. Paul, alleging that the Conway Auto policy was in effect on July 4, 1995, and seeking satisfaction of the judgment from the damages action. First Bank also sought attorney’s fees and award of a twelve percent penalty pursuant to statute. St. Paul denied the material allegations of the complaint and asserted that the Conway Auto policy had been canceled by the insured prior to July 4, 1995.

The circuit court entered judgment in favor of First Bank for $1,212,500, on the grounds that “the policy was not canceled [because] the request by the insured had not been received by the insurer at the time of the claim.” The circuit court did not award attorney’s fees or the statutory penalty. From that judgment in favor of First Bank, St. Paul brings this appeal. First Bank cross-appeals from the denial of its request for attorney’s fees and statutory penalty.

St. Paul first contends on appeal that Conway Auto’s policy was canceled not later than June 28, 1995, relying upon Warren’s letter to Kenyon of that date. St. Paul argues that Conway Auto’s notice of cancellation as of June 16th was clear and unequivocal and was communicated to St. Paul by June 28, 1995. St. Paul relies upon American States Ins. Co. v. Southern Guaranty Ins. Co., 53 Ark. App. 84, 919 S.W.2d 221 (1996) (citing Yant v. Bowker) 248 Ark. 824, 454 S.W.2d 84 (1970)). We agree that the principle articulated in Yant is a correct statement of the law: that there must be an actual notice of cancellation within the meaning of the policy, unequivocal in its form. The mere intention to cancel will not be sufficient without some overt act giving the company notice that the contract is at an end. Id. We do not find American States to be persuasive on the point at issue in this case, however, because in American States there was no showing of policy language oudining the requirements for cancellation.

St. Paul argues that the policy was terminated by mutual assent of both parties before Warren’s letter to Kenyon on June 28, 1995. The insurance contract, drafted by St. Paul, requires either surrender of the policy, or, in the alternative, written notice mailed to them of the intent to cancel. Because Kenyon did not or could not surrender the policy, he was instructed to execute a “Cancellation Request/Policy Release” form, which he received from Warren, and that he would be entitled to a small refund “once the cancellation was processed.” On this form was typed “6/16/95” for “effective date of cancellation” and offered the choice of two forms: “Cancellation Request (Policy attached)” or “Policy Release (Policy not attached).” “Policy release” was checked with an “x.” Under the release statement, the signer agreed that: “The above-referenced policy is lost, destroyed, or being retained. No claims of any type will be made against the Insurance Company under this policy for losses which occur after the date of cancellation shown above. Any premium adjustment will be made in accordance with the terms and conditions of the policy.” As for the reason for the cancellation, it was noted: “Request of Insured.”

Warren’s letter demonstrates that St. Paul had expressed a willingness to terminate the coverage but insisted upon Kenyon’s providing the cancellation and release form before the cancellation would be processed. It is clear that St. Paul insisted upon compliance with the written notice provisions of the policy, and did not enter into a termination by mutual agreement before the written notice and release was received by them. We note that on June 30, 1995, St. Paul was still treating the policy as effective, as shown by a statement sent to Conway Auto including charges for coverage effective July 17, 1995.

With regard to the question when the written notice of termination was given by Kenyon, St. Paul attempts to characterize this issue as an implication of the “mailbox rule,” urging that the issue to be resolved is whether the written cancellation is effective upon mailing by the insured, as St. Paul contends, or upon receipt by the insurer. The policy language provides that the insured may cancel the policy by delivering the policy to the insurance company or their authorized agent, or, if that is not possible, “notify us by mail and include the date coverage is to end.” Kenyon mailed the cancellation and release form to his agent, Warren, sometime after June 28, 1995, and Warren received it on July 6, 1995. Fie then forwarded the cancellation and release form to St. Paul on that date. It is significant that St. Paul argued both in its Response to Interrogatories and its brief to this court that Warren was without authority to act on their behalf, and characterized Warren, and the Robinson-Adams Agency, as the agents of Kenyon. The form was not mailed to St. Paul by Warren until two days after the accident giving rise to the claim, after the rights of Lane and Seitz had attached. Cancellation operates prospectively only, and a request for cancellation communicated to the company after the loss would not be effective to absolve the company from liability already accrued. Mann v. Charter Oak Fire Ins. Co., 196 F. Supp. 604 (E.D. Ark. 1961), aff’d. 304 F.2d 166 (8th Cir. 1962) (citing 45 C.J.S. Insurance § 459). The rights of the injured parties attached at the time of the accident, and rescission of a policy retroactively to an earlier date may only be accomplished with the consent of the insured policy owner and any third parties in whom rights may have vested. See Douglass v. Nationwide Mut. Ins. Co., 323 Ark. 105, 913 S.W.2d 277 (1996). Because Warren did not mail the notice to St. Paul until after the accident on July 4, 1995, the issue of whether the notice of termination and release was effective upon being placed in the mail by Warren, or upon receipt by St. Paul, is irrelevant to a resolution of this case. Both events occurred after the accident.

On cross-appeal, First Bank urges that the trial court erred in failing to award attorney’s fees and a statutory twelve percent assessment against St. Paul for failure to pay the loss within the time specified, as provided in Ark. Code Ann. § 23-79-208 (Repl. 1999). The order entered by the trial court does not reflect that First Bank obtained a ruling on this point from the trial court. The burden of obtaining a ruling on this issue was on First Bank, and the failure to do so, leaving the issue unresolved, operated as a waiver of the argument on appeal. Brumley v. Naples 320 Ark. 310, 896 S.W.2d 860 (1995). For this reason, we affirm the trial court on cross-appeal as well.

Affirmed.

BROWN, J., not participating.


author: LAVENSKI R. SMITH, Justice.

text:
    Charles AMANT v. George M. CALLAHAN
    99-1009
    20 S.W.3d 896
    Supreme Court of Arkansas
    Opinion delivered July 7, 2000

      Vicki Shaw Cook, Judge;

      Wright, Lindsey & Jennings LLP, by: H. Keith Morrison, for appellants.

      Terry P. Diggs, for appellee.
   LAVENSKI R. SMITH, Justice.

This is a probate case. Appelstice. Amant, as estate devisees, assert that the Garland County probate court erroneously granted fees to the administrator, the estate attorney, and estate accountants. Appellants contend that the Full Faith and Credit Clause of the U.S. Constitution as well as the doctrine of res judicata preclude the award of fees because they had been previously sought and denied in an Oklahoma probate court. They also assert that the trial court erred in granting these fees because they are excessive under the statutes, and because they were untimely sought under the applicable statutes. We find merit in appellant’s Full Faith and Credit argument and, accordingly, reverse.

Facts

In 1984, Tude Mitchell Ray, a lifelong Oklahoma resident, moved to Garland, County, Arkansas, at the age of eighty-one. Over the course of his long life, Mr. Ray amassed a sizeable estate valued in excess of one million dollars despite being illiterate. From 1929 until the early 1940’s he acquired approximately 1,722 acres of land and mineral rights in Oklahoma. Mr. Ray had twelve children. In 1983, nine of his children commenced an action in Oklahoma to have him declared incompetent to handle his affairs. Two of his children, Muriel Amant and Gus Ray, cared for Mr. Ray during the pendency of the incompetency proceedings. They did not live in Oklahoma, but rather in Missouri and Arkansas, respectively. After coming to Arkansas, Mr. Ray retained the services of Attorney George M. Callahan of Hot Springs to represent him in the incompetency proceedings in Oklahoma. Callahan succeeded, and on May 2, 1986, the Oklahoma Court of Appeals overturned the Oklahoma District Court’s finding of incompetency, and instructed the district court to dismiss the proceeding.

Apparently, in May 1985, Callahan drafted a will for Mr. Ray. The will fisted Callahan and a Mr. Meacham of Clinton, Oklahoma as coexecutors. Mr. Ray’s will left his estate to his sons Gus and Peter, and his daughter Muriel. The will excluded the nine children involved in the incompetency proceedings, provided for $60.00 per month for Pete Ray, granted Muriel Amant mineral rights in what is referred to as the “Section 32 property,” and granted the residue to Gus Ray. However, prior to having Callahan draft his will in 1985, Mr. Ray had already transferred the “Section 32 property” to Muriel, and additional mineral rights to Muriel’s husband Charles in 1984.

On August 22, 1986, Tude Mitchell Ray died testate at the age of eighty-three in Hot Springs. On that same day, Callahan entered the will in probate. At the time of his death, Mr. Ray owned a house and a small amount of personal property in Arkansas. However, the bulk of his 1.3 million dollar estate consisted of real property and real-property interests in Oklahoma, where he had lived almost all of his fife. Thus, the domiciliary probate case was established in Arkansas. Pursuant to the will, the probate court appointed Callahan personal representative for the estate. Callahan charged the estate $125.00 per hour for his services as personal representative. Callahan, although an attorney himself, retained Charles Lincoln as attorney for the estate. Lincoln also charged $125.00 per hour for his services. Additionally, Callahan also retained an accounting firm to handle the finances of the estate. In the course of the probate process, substantial accounting fees were paid to Luebben' and Associates, the accounting firm hired by Callahan.

On September 1, 1987, a mortgagee on some Oklahoma estate property filed an ancillary probate action in Custer County, Oklahoma. At some point, the Oklahoma court substituted Callahan as a co-personal representative in the ancillary action There were also two actions to compel return of the property transferred to Muriel and Gus in 1984, ostensibly to avoid gift taxes that would have to be paid otherwise. On June 15, 1988, LaVone Keeton, one of the excluded children, challenged the will in the district court in Oklahoma, asserting she had a valid will bequeathing the “Section 32 property” to her. The matter was litigated, and Callahan prevailed, bringing this matter to an end in 1989. On November 21, 1988, Charles and Muriel Amant and Gus and Roberta Ray entered into a “Family Settlement Agreement,” to resolve their disputes with Callahan.

The record reflects that even following the execution of the Family Settlement Agreement, the estate continued to languish in the courts. Callahan first submitted an inventory for the estate in 1992. The vast majority of the legal proceedings occurred in Oklahoma where Mr. Ray owned the bulk of his property. During the course of the probate proceedings, and for reasons unstated in the record, Callahan comingled the funds of the domiciliary and ancillary probate proceedings. This apparently led to some consternation on the part of the Oklahoma probate court as to the handling of the estate. The devisees and the executor battled extensively over aspects of the probate, but after approximately seven years, the Oklahoma proceedings wound down.

On July 23, 1993, Callahan filed his Final Account and Petition to close out the ancillary probate in Oklahoma. Callahan included requests for $36,827.87 in personal representative’s fees for “services rendered in the probate proceeding pending in Garland County, Arkansas and the ancillary probate proceeding before this Court”; $8,808.11 for attorney’s fees to the law firm of Lincoln and Lawson; and $11,730.00 for accounting services to Luebben and Associates. On December 16, 1994, Oklahoma Probate Judge Robert W Collier issued his order approving the final account and closing the ancillary probate. In his order, Judge Collier declined to pay all. the fees requested by Callahan’s petition. Instead, Judge Collier ordered that Callahan’s fees for administering the estate had been paid already by his receipt of $70,000 from the probate court of Garland County. Judge Collier transferred $8,808.11 to Arkansas to pay Lincoln and Lawson and awarded Luebben and Associates only $8,000 of its requested fees. No one appealed the order of the Oklahoma probate court.

Interestingly, during the pendency of the Oklahoma proceeding, Callahan filed a “Petition for Allowance and Payment of Fees to Attorneys and Accountants for the Estate” on March 29, 1994, seeking many of the same fees previously sought in Oklahoma. After much litigation, the Garland County Probate Court granted Callahans petition on September 10, 1996. The Court found the fees sought were the same fees sought in Oklahoma, with the exception of $9,355.18 sought in additional fees. No one appealed this finding. The probate court also found Lincoln had already received the $8,000.00 transferred by the Oklahoma probate court and then granted Callahan $22,184.23, Lincoln $15,280.10, and Luebben and Associates $18,545.55. Because the estate assets had been depleted, Callahan then sought and received an order from the court requiring the Amants to return a portion of the estate assets distributed to them to enable the estate to pay the fees ordered. The court entered this order on April 16, 1999. The Amants objected and timely initiated the instant appeal after the court issued its Order of Final Distribution and Closing Estate on August 10, 1999.

Standard of Review

We review probate proceedings de novo, and we will not reverse the decision of the probate court unless it is clearly erroneous. Buchte v. State, 337 Ark. 591, 990 S.W.2d 539 (1999); Barrera v. Vanpelt, 332 Ark. 482, 965 S.W.2d 780 (1998). When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses. Babb v. Matlock, 340 Ark. 263, 9 S.W.3d 508 (2000).

Full Faith and Credit

On appeal, the Amants assert that the Arkansas fee awards are precluded to the extent they were previously denied in Oklahoma due to the operation of the Full Faith and Credit Clause of the United States Constitution. In response, Callahan argues that the Oklahoma court lacked jurisdiction to issue its order. We agree with the Amants and reverse the probate court on the award of fees denied by the Oklahoma probate court.

Our analysis begins with the express finding of the trial court below that many of the fees at issue consisted of fees expressly denied by the Oklahoma probate court in the ancillary proceeding. Appellees acknowledge that they did not appeal the findings of the Oklahoma or the Arkansas probate courts respecting requested fees. The State of Arkansas must give full faith and credit to foreign judgments under the U.S. Constitution. U.S. Const, art. 4, § 1; see also, Ark. Code Ann. § 16-66-602 (Supp. 1995) and First Commer cial Trust Company v. Rank, 323 Ark. 390, 915 S.W.2d 262 (1996). Full faith and credit applies to probate proceedings as well. Gocio v. Gocio. 206 Ark. 579, 177 S.W.2d 742 (1944). The doctrine of res judicata also applies. Where a party subjects itself to the jurisdiction of a foreign court on an issue, the decision by that court on that issue is not subject to collateral attack in Arkansas courts. Monark Boat Co. v. Fischer, 292 Ark. 544, 732 S.W.2d 123 (1987).

Both parties cite the case of Estate of Torian v. Smith, 263 Ark. 304, 564 S.W.2d 521 (1978), as supportive of their positions and determinative on the issue of Full Faith and Credit. The parties are correct. Torian does state the relevant law in this matter. In Torian, the decedent, Lula Torian, died testate while an Arkansas resident. Her executor, the First National Bank of Memphis, opened a probate proceeding in Mississippi where she owned about 900 acres of real property valued at $1,000 per acre. The executor also began a probate proceeding in Arkansas to handle the decedent’s personal property in Arkansas, which approached one-half million dollars. The Arkansas court ordered that the assets in Arkansas would be administered according to Arkansas law and the assets in Mississippi would be administered according to Mississippi law. The executor then sought to withdraw the probate of the will in Mississippi and transfer the same to the Arkansas probate court in Crittenden County. The Mississippi court denied the petition and was affirmed by the Mississippi Supreme Court. The executor sought to charge estate-tax expenses against the personal property assets in Arkansas. The residuary beneficiaries defended contending Arkansas law had not been followed in apportioning the taxes in the Mississippi proceedings. The executor contended that since Mississippi had exercised personal jurisdiction over the beneficiaries, they were bound by the orders of the Mississippi court. We, however, declined to extend full faith and credit to the Mississippi order, holding instead that only Arkansas had in rem jurisdiction over the Arkansas assets of the estate. The Mississippi judgment was only entided to full faith and credit in Arkansas only as far as it concerned property in Mississippi.

In the instant case, the orders of the probate court in Oklahoma concerned disposition of the real property located in Oklahoma over which only the Oklahoma court had in rem jurisdiction. It is undisputed that the Oklahoma court also had personal jurisdiction over tbe parties. We therefore hold that the orders of the Oklahoma probate court concerning fees to the executor, attorney, and accountant for the estate are entitled to fall faith and credit under the United States Constitution and are therefore impervious to collateral attack in Arkansas state courts. The Orders of the Garland County Probate court granting payment of fees previously denied by the Oklahoma Probate are clearly erroneous and are hereby reversed.

Remaining Fees

Disallowing those fees denied in the Oklahoma proceeding leaves at issue approximately $9,355.18 in additional fees sought and awarded in Arkansas. We note that the probate court’s order grants the fees without comment as to why the statutory amounts set out in Ark. Code Ann. § 28-48-108(a)(1987) were exceeded in this case. Subsection (b) of § 28-48-108 indicates that in exceeding the statutory amounts, the probate court should take into account “the nature and extent of the services, the extent and value of real property, and other relevant circumstances.” Undoubtedly, disallowing the fees denied in Oklahoma has changed that evaluation. Also, the trial court’s pro rata distribution to Callahan, Lincoln, and Luebben of the estate’s $16,342.98 should be reassessed in light of this opinion. We therefore remand this case for the probate court to address the appropriateness of any additional fee award under this statute.

Appellant’s final issue concerned the timeliness of the fee requests. Because the funds transferred to the Arkansas proceedings by the Oklahoma court exceed the remaining $9,355.18 in fees, should they be granted, there is no need to discuss whether the order to return prior distributions was timely. We remand for entry of amended orders consistent with this opinion.

Reversed and remanded.