text:
    Eddie Linn SWAFFAR Jr. v. W.C. SWAFFAR, Executor
    96-751
    938 S.W.2d 552
    Supreme Court of Arkansas
    Opinion delivered February 10, 1997
    [Petition for rehearing denied March 17, 1997.]

      J.R. Nash, for appellant.

      Barber, McCaskill, Jones &Hale, P.A., by: Richard C. Kalkbrenner and Derek J. Edwards, for appellee.
   Donald L. Corbin, Justice.

Appellant, Eddie Linn Swaffar Jr., appeals the order of the Faulkner County Probate Court approving the final accounting and denying his claim for set-off in the administration of the estate of his father, Eddie Linn Swaffar Sr. Appellee, W.C. Swaffar, is Appellant’s uncle and executor of the estate. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(16) (as amended by per curiam July 15, 1996), as this case requires construction of a will. Appellant raises four points for reversal. We find merit to the first point and reverse and remand in part and affirm in part.

Facts and Procedural History

The decedent, Eddie Linn Swaffar Sr., died testate on April 8, 1989, of cancer after having survived severe burns he incurred in an accident at his welding shop in Conway, Arkansas. The decedent’s will named as executor Appellee W.C. Swaffar, the decedent’s brother, and placed all property of the estate into a trust for the benefit of the decedent’s two sons, Appellant and a minor named Brandon Heath Swaffar. The will provided that the elder son be the guardian of the minor son and that each son would receive an equal share of the trust as follows: Upon reaching age 30, each would receive one-fourth of the trust; at age 35, another one-fourth; and at age 40, the remaining half of the trust. The will also provided that Appellant had the right to five in the decedent’s home and “shall maintain said home in good repair and pay rent for the home and shop at $1,200.00 per month payable to the Trust.”

This case is marked by much conflict between Appellant and Appellee. The conflict existed almost from the very beginning when Appellee sought to have his brother’s will admitted to probate on April 12, 1989. No action was taken thereafter until September 11, 1989, when Appellant filed a petition to contest the will, to remove Appellee as executor, and to demand an inventory. The conflict continued through the next six years, and there was much activity in the case. To recite all the activity would unduly lengthen this opinion. We do, however, mention some of these actions as they become relevant to our discussion of the merits of this appeal.

In July 1995, Appellee filed a final accounting accompanied by a petition for approval of the final accounting, final distribution, and for discharge as personal representative. Appellant filed objections to the final accounting and asserted a claim of set-off against any alleged debts against the estate. After a hearing on January 5, 1996, the probate court entered an order denying Appellant’s objections and claim for set-off and approving the final accounting. This appeal is from that order.

Certificates of Deposit

Appellant’s first point for reversal concerns two certificates of deposit that Appellee listed on a document as items not included in the estate. Appellee admitted that his attorneys helped him prepare this document and that it was filed at some point in the probate proceedings. This document was admitted as Appellant’s Exhibit One during the hearing on Appellant’s objections to the final accounting and lists one certificate of deposit at First National Bank payable to W.C. Swaffar in the amount of $54,986.40. The document lists the other certificate of deposit as being at First State Bank, payable to Brandon Swaffar or W.C. Swaffar in the amount of $40,180.84. The record does not disclose how or when these certificates of deposit were purchased, although Appellant alleges that they were purchased by Appellee with cash he obtained from the decedent. Of some significance to Appellant is the fact that this document also fists a fife insurance policy in the amount of $10,000.00 with Brandon as beneficiary. Also of significance to Appellant is Appellee’s testimony that the certificate of deposit in Appellee’s name was also in the name “Eddie Lynn Swaffar,” but failed to distinguish between the junior Swaffar or the senior Swaffar. Appellant argues these two facts are evidence that the decedent intended to make equal cash gifts to his two sons somewhere in the range of $50,000.00 each.

Appellant objected to the final accounting on the basis that it did not include these two certificates of deposit as property of the estate. Appellee testified at the January 1996 hearing that the certificates of deposit were held jointly with rights of survivorship in the names of the decedent and himself and Brandon and himself, respectively. As previously mentioned, Appellee admitted that the certificate of deposit bearing his name and the decedent’s did not identify “Eddie Linn Swaffar” as either the junior or the senior Swaffar. On the basis of this testimony and other evidence indicating that the decedent was a successful businessman, the probate court ruled that the decedent purchased the certificates of deposit intentionally the way he did and that he would not substitute his judgment for the decedent’s. The probate court said, “If he [the decedent] knew that a part of it was going to Brandon, and a part of it was going to his brother, that was his choice. And absent any proof to the contrary why it should not be, I’m leaving it there.” (Emphasis supplied.)

On appeal, Appellant contends the probate court’s ruling is contrary to the law and evidence presented. Appellant’s argument in support of this contention is twofold. First, he argues that it was Appellee’s burden to prove that the certificate of deposit bearing Appellee’s name was a gift from the decedent to Appellee. In support of this argument, Appellant relies on McDermott v. McAdams, 268 Ark. 1031, 598 S.W.2d 427 (Ark. App. 1980). Second, Appellant argues that the proof presented by Appellee did not establish that either certificate of deposit was a joint tenancy and therefore subject to ownership by anyone other than the decedent. In support of this argument, Appellant relies on Jones v. Robinson, 297 Ark. 580, 764 S.W.2d 610 (1989).

Appellee responds that Appellant’s argument is barred because it was not timely raised below and because the record on appeal does not demonstrate error. First, Appellee contends that Appellant is barred from raising this issue now according to Ark. Code Ann. § 28-52-106 (1987) because he did not file an objection to the certificates of deposit until the final accounting. Appellee implies strongly that the document was filed as part of the initial accounting, and, therefore, Appellant would have had to file an objection within sixty days pursuant to section 28-52-106. The record, however, does not confirm that the document was filed as part of or along with the initial account. Likewise, the record does not confirm that the document was filed with the initial inventory or with any of the annual accountings. In short, the record does not disclose that the document was ever filed. Thus, we are left only with Appellee’s testimony that the document listing the certificates of deposit was indeed filed at some point during the probate proceedings. Under such facts and circumstances, we will not apply section 28-52-106 to bar Appellant’s objections. Second, Appellee contends that our review is barred because Appellant has not produced a record on appeal that demonstrates error. We agree that the record is insufficient for our review, but, for the reasons discussed below, we do not agree that, on these particular facts and issues, the insufficiency is Appellant’s fault.

We agree with Appellant’s assertion that the probate judge’s ruling was contrary to the law. The issue in McDermott was who bore the burden of proof in probate proceedings when a beneficiary claimed title to property as a gift that the executor claimed belonged to the estate. The McDermott court looked to the general law of inter vivos gifts and concluded that “the common thread seems to be that whoever claims the gift was made must prove it, regardless who initiated the inquiry.” McDermott, 268 Ark. at 1040, 598 S.W.2d at 432. In so concluding, the McDermott court relied on Bennett v. Miles, 212 Ark. 273, 205 S.W.2d 451 (1947), which has facts remarkably similar to the facts of this case and which held that an executor who did not fist a certain bank account as part of the estate bore the burden of proving that it had been a gift from the decedent. Like the McDermott court, the Bennett court looked to the general law on inter vivos gifts, which requires that the elements of an inter vivos gift be proven by clear and convincing evidence. The elements of an inter vivos gift are that the donor be of sound mind, have the clear intent to make a gift beyond recall, have actually delivered the subject matter of the gift to the donee or the donee’s agent, and at the same time have released all future dominion and control over the property delivered. Bennett, 212 Ark. 273, 205 S.W.2d 451; Baugh v. Howze, 211 Ark. 222, 199 S.W.2d 940 (1947).

Consistent with McDermott and Bennett, we agree with Appellant that it was Appellee’s burden to prove by clear and convincing evidence that the certificate of deposit bearing his name was a gift to him. McDermott, 268 Ark. 1031, 598 S.W.2d 427. The probate judge stated that he was ruling for Appellee “absent any proof to the contrary [.] ” To the extent that the probate court shifted the burden of proof on this issue to Appellant to prove the negative proposition that the certificate of deposit was not a gift, the probate court erred. See McDermott, 268 Ark. at 1040, 598 S.W.2d at 432. We must, therefore, reverse and remand this case for further consideration under the appropriate standard of proof.

On remand, we note that the burden of proof on the question of whether the decedent meant to make a gift to his son Eddie Linn Swaffar Jr. is on Appellant. Likewise, the burden of proof on the question of whether the decedent made a gift to Appellee or Brandon fies with Appellee and Brandon respectively.

The probate judge’s application of an erroneous standard of proof precludes any meaningful review of Appellant’s remaining argument that the evidence is insufficient to establish that either of the two certificates of deposit were subject to the ownership of anyone other than the decedent pursuant to Jones, 297 Ark. 580, 764 S.W.2d 610. Jones held that the “designated in writing” requirement of Ark. Stat Ann. § 67-552 (Repl. 1980) be complied with substantially. Section 67-552, which governs titles to accounts and certificates of deposits held in two or more names, was amended significantly in 1983 and is currently codified as Ark. Code Ann. § 23-52-1005 (1987). As there was no evidence of when these particular certificates of deposit were issued, we cannot determine which version of the statute applies to the facts of this case. Moreover, as neither the certificates of deposit nor any other writing or bank record was admitted into evidence, the record lacks sufficient evidence for the probate judge to have determined who had title to these two certificates of deposit. Because we think the lack of evidence is due to the effect of the probate court’s application of an erroneous standard of proof, we remand for further development as to the facts of ownership of these certificates of deposit.

Appellant also assigns as error the probate judge’s decision on unpaid rent to the estate, executor’s fees, attorneys’ fees, and Appellant’s claim for set-off. We affirm these rulings for the following reasons.

Unpaid Rent on Shop

Appellant’s second point for reversal concerns the $80,836.40 in accrued and unpaid rent on the decedent’s welding shop that was charged against Appellant in the final accounting. Appellant’s failure to comply with Ark. Code Ann. § 28-l-116(d) (1987) and file written objections to the 1991 and 1993 orders concerning the rent on the shop bars our review of this issue.

Executor’s and Attorney’s Fees

As his third point for reversal, Appellant contends that the trial court erred in approving the $69,884.45 in fees requested by Appellee as executor and by his attorneys, Phil Stratton, who originally represented Appellee but sought retirement during the case, and the firm of Barber, McCaskill, Jones & Hale, which the probate court allowed to be substituted as counsel for Appellee.

All fees paid to the Barber Firm were requested by petition and approved by order of the probate court. Appellant did not file written objections to these orders. Therefore, he cannot now appeal them pursuant to section 28-l-116(d). As for the other fees paid to Mr. Stratton and Appellee, Appellant offers no evidence that the fees are unreasonable or contrary to the amounts allowed by statute, Ark. Code Ann. § 28-48-108 (1987). In the absence of any proof that the fees are unreasonable or in violation of the statute, we affirm the probate judge’s exercise of discretion in allowing these fees. See Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 878 (1991).

Set-off

Appellant filed a claim for set-off against any claims due him from the estate for his attorney’s fees incurred in the six-yearlong history of this estate. Appellant’s claim for set-off is based primarily upon his efforts in Pulaski County Circuit Court to obtain the return to the- estate of the land valued at $361,500.00. Probate courts do not have jurisdiction to award fees for services rendered to individual beneficiaries. Paget v. Brogan, 67 Ark. 522, 55 S.W. 938 (1900). We therefore affirm the probate court’s denial of Appellant’s claim for set-off.

For the reasons aforementioned, the part of the probate court’s order denying Appellant’s request to include the two certificates of deposit in the estate is reversed, and the case is remanded for further development of this issue. All remaining parts of the probate court’s order are affirmed.

       There was related litigation in this court concerning a possible pretermitted adopted son, Billy Gracen McKim Swaffar, whom we held was never adopted by the decedent. Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992).


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Clay Anthony FORD v. Honorable Ralph WILSON
    CR 96-1047
    939 S.W.2d 258
    Supreme Court of Arkansas
    Opinion delivered February 10, 1997

      Ricky Hicks, Brian Ratcliff, and Timothy O. Dudley, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Petitioner Clay Anthony Ford petitions for a writ of prohibition to Judge Ralph Wilson, circuit judge of Mississippi County, on three grounds: (1) venue is improper in Mississippi County and should be fixed in Crittenden County; (2) the State is prevented from seeking the death penalty under principles of res judicata and collateral estoppel; and (3) retrial of petitioner is precluded as violative of the double-jeopardy clause. Though the style of the petition is couched in terms of an individual circuit judge, prohibition lies to the circuit court and not to a judge. Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992). We will treat this petition accordingly. None of the points is a basis for prohibition relief, and we deny the petition.

On October 1, 1980, petitioner was charged by information with capital murder in connection with the September 5, 1980 slaying of an Arkansas State Police Trooper. The information was filed in Crittenden County Circuit Court, which was the county where the crime was committed. On Ford’s motion, venue was changed from Crittenden County to Mississippi County. Following a jury trial in that venue in 1981, Ford was found guilty and sentenced to death. His conviction and death sentence were affirmed on direct appeal. See Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982). The United States Supreme Court subsequendy denied Ford’s petition for a writ of certiorari. See Ford v. Arkansas, 459 U.S. 1022 (1982).

On December 20, 1982, this court issued a per curiam order denying Ford’s petition for postconviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure due to failure to allege adequate grounds for relief. This was followed by a per curiam order from this court issued on December 27, 1982, which denied Ford’s amended petition for Rule 37 relief because it was untimely and because it failed once more to allege sufficient grounds for relief. See Ford v. State, 278 Ark. 106, 644 S.W.2d 252 (1982).

On December 29, 1982, Ford filed a petition for writ of habeas corpus and a petition for stay of execution in the federal district court. On August 30, 1994, the federal district court vacated Ford’s conviction and sentence and directed the State to “either retry Ford within 120 days or the writ of habeas corpus shall be issued and Ford will be released.” Ford v. Lockhart, 861 F. Supp. 1447, 1470 (E.D. Ark. 1994). The federal district court conditionally granted Ford’s petition for relief on three grounds. First, the court determined that Ford’s trial counsel was ineffective during the penalty phase for fading to introduce evidence of two mitigating circumstances: (1) that Ford was intoxicated at the time of the offense; and (2) that Ford had been subjected to significant physical abuse as a child. For its second ground, the court determined that the State had exercised its peremptory challenges systematically and in a racially discriminatory manner. Finally, the court ruled that the state trial court had committed prejudicial error by allowing the introduction of nonviolent felonies into evidence during the penalty phase.

The Eighth Circuit Court of Appeals, without discussing the merits of the federal district court’s finding of ineffective assistance of counsel during the penalty phase or the error in allowing the introduction of nonviolent felonies, affirmed on the basis of the systematic exclusion of African-Americans from the jury, which the Court of Appeals found to be a “structural error” not subject to a harmless-error analysis. See Ford v. Norris, 67 F.3d 162 (8th Cir. 1995).

On March 25, 1996, Ford filed a motion to fix venue in Crittenden County Circuit Court and asserted that venue should be fixed in that county because it is where the crime occurred, as required by Ark. Const, art. 2, § 10. The State objected and contended that Ford was entitled to a new trial only in Mississippi County because he had already exercised his statutory right to one change of venue under Ark. Code Ann. § 16-88-203 (1987). The circuit court denied Ford’s motion. Ford also moved to dismiss the capital murder charge as violating his double-jeopardy rights, or, in the alternative, to prohibit the State from seeking the death penalty under principles of res judicata and collateral estoppel. Those motions were denied by order entered June 20, 1996, as well as a motion for reconsideration of the venue point, and the trial court granted Ford leave to petition this court for a writ of prohibition. Ford’s prohibition petition in this court followed.

I. Improper Venue

Ford first contends that after vacation of his 1981 conviction and sentence by the federal district court, venue should be fixed in Crittenden County — the county of the crime where the information against him was filed. We initially note that a writ of prohibition is a proper remedy only when the acting court is wholly without jurisdiction. Hall v. Pulaski County Circuit Court, 320 Ark. 593, 898 S.W.2d 46 (1995). However, this court has held that the writ may issue when venue lies improperly. State v. Webb, 323 Ark. 80, 913 S.W.2d 259, reh’g denied, 323 Ark. 87-A, 920 S.W.2d 1 (1996); Griffin v. State, 297 Ark. 208, 760 S.W.2d 852 (1988).

Ford’s contention on appeal is marked by simplicity, as it was before the trial court. He observes that the Arkansas Constitution entitles him to a trial in the county where the crime was committed. See Ark. Const, art. 2, § 10. See also State v. Webb, supra. He then contends that the granting of conditional habeas corpus relief and the vacating of his conviction and sentence had the effect of causing the proceedings to begin anew, which entitles him to be prosecuted in Crittenden County.

The State counters that Ford must be retried in Mississippi County and correcdy observes that the Arkansas Code provides: “Only one (1) change of venue shall be granted in any criminal case or prosecution.” Ark. Code Ann. § 16-88-203 (1987) . See also Ronning v. State, 295 Ark. 228, 748 S.W.2d 633 (1988) . Because Ford has already had one change of venue to Mississippi County, the State theorizes that venue cannot be changed again, and Ford must be retried in the county of the first trial. The State further cites a statute which provides that if an appellate court finds prejudicial error in the sentencing proceeding in a death case, it may set aside the death sentence and remand the case “to the trial court in the jurisdiction in which the defendant was originally sentenced.” Ark. Code Ann. § 5-4-616(a)(l) (Repl. 1993). This, the State advances, is sufficiently analogous to the circumstances in the case at hand.

The issue raised appears to be one of first impression in Arkansas and, indeed, nationally. Were this a matter of a simple reversal by this court and a remand, we would have no hesitancy in holding that proper venue lies in Mississippi County, the county of the first trial. For example, in a 1981 case, the Florida District Court of Appeal concurred in that position and held that on remand after a reversal for error committed in the first trial, venue lay in the county of the first trial, where venue had been changed at the defendant’s request, Coxwell v. State, 397 So.2d 335 (Fla. App. 1981). The Florida court stated:

We accordingly hold that there was no error in refusing to grant his motion to send the case back to trial in the same county from whence it came, being the same county in which appellant had previously contended he could not receive a fair trial.

Coxwell, 397 So.2d at 336.

Ford contends, nonetheless, that the fact the federal district court vacated the State judgment of conviction annuls and voids the judgment and sends the matter, metaphorically, back to square one. Federal courts, of course, have no power to remand a matter to a state trial court but may, on collateral review, grant a writ of habeas corpus conditioned on the State’s affording the defendant certain relief. See Maywood v. Smith, 791 F.2d 1438 (11th Cir. 1986). Thus, the question in the instant case is what is the status of the State’s prosecution following a conditional writ of habeas corpus and vacated judgment. Flave all previous proceedings concerning this prosecution been annulled by the federal district court’s order? Must a new charging information be filed by the State? Must Ford be released from custody, pending a new charge being brought?

We think the answers to these questions must be in the negative and turn to the United States Supreme Court’s decision in Irvin v. Dowd, 366 U.S. 717 (1961), for guidance on this point. In Irvin, the defendant was charged with murder and sought a change of venue to an adjoining county which was granted. He then sought a second change of venue which was denied. He was tried, convicted, and sentenced to death. The United States Supreme Court, on habeas corpus review, voided the State conviction because of juror bias. The Court stated:

Petitioner’s detention and sentence of death pursuant to the void judgment is in violation of the Constitution of the United States and he is therefore entitled to be freed therefrom. The judgments of the Court of Appeals and the District Court are vacated and the case remanded to the latter. However, petitioner is still subject to custody under the indictment filed by the State of Indiana in the Circuit Court of Gibson County [the county where venue was changed] charging him with murder in the first degree and may be tried on this or another indictment.

Irvin, 366 U.S. at 728.

It is clear under Irvin v. Dowd that the Supreme Court did not contemplate that a new information was required following a void conviction; nor was a release from custody mandated. And, finally, though the issue of venue in the original county was not direcdy at issue in that case, the Court assumed proper venue, following a void conviction, was in the county where venue had been transferred.

This result comports with good sense. We do not view a vacating or voiding of a state conviction for trial error as rendering the defendant a free man, unfettered by the criminal charge and prior determinations of venue. There is, too, the fact that the Eighth Circuit Court of Appeals ordered Ford discharged unless the State commenced proceedings to “retry” Ford within a reasonable period of time, which presupposes that Ford’s status is what it was immediately before trial commenced in Mississippi County in 1981. See Ford v. Norris, supra.

We are cognizant of Ford’s affidavit and argument that trial counsel was ineffective regarding the change of venue to Mississippi County and that Ford did not attend the hearing on the venue change in 1981, which violated his basic constitutional rights. Because of this, he argues that he has not really received the one change of venue to which he is entitled under § 16-88-203. At first blush, a change of venue appears to have been a reasonable course of action by his trial counsel in 1981. Certainly, the federal district court did not base its finding of ineffectiveness on trial counsel’s motion to change venue. We can only conclude that the change of venue to Mississippi County was a valid defense strategy. Moreover, this is an issue that could have been raised by Ford in trial and on direct appeal, but it was not.

In sum, we cannot conclude that the Mississippi County Circuit Court, Chickasawba District, is an improper venue.

II. Res Judicata and Double Jeopardy

Ford next contends in support of prohibition that the federal district court found he was innocent of the death penalty under the Supreme Court decision of Sawyer v. Whitley, 505 U.S. 333 (1992), and that this finding is res judicata and precludes the possibility of death as a penalty on retrial. He further complains that his retrial for murder impinges on his double-jeopardy rights. We disagree on both counts.

We first must decide whether the defenses of res judicata and double jeopardy are viable jurisdictional issues that would foreclose a new trial in whole or in part. We have had occasion recently to comment on this issue in two cases. See Fletcher v. State, 318 Ark. 298, 884 S.W.2d 623 (1994); Leach v. State, 303 Ark. 309, 796 S.W.2d 837 (1990). In Fletcher, this court declined the opportunity to issue a writ of prohibition when confronted with the petitioner’s double-jeopardy argument that he was being brought to trial in Lonoke County on four charges of incest when he had previously pled guilty in Pulaski County to one count of incest involving the same victim. After examining the factual findings of the Lonoke County Circuit Court, we stated:

Because prohibition is a remedy of sufferance rather than of right, only when it is entirely clear that the court below is exceeding its jurisdiction will we grant it. For this reason, we deny the appellant’s request for a writ of prohibition without prejudice and without taking a position on the issues of double jeopardy and collateral estoppel.

Fletcher v. State, 318 Ark. at 301, 884 S.W.2d at 626.

In a similar vein, this court denied the petition for writ of prohibition in Leach v. State, supra, when confronted with a double-jeopardy argument. We stated:

On reflection, however, and viewing the limited purposes of a writ of prohibition, it becomes clear that we should not grant the writ. We have no idea what the evidence in this case will show about whether the conspiracies were separate agreements.

Leach, 303 Ark. at 311, 796 S.W.2d at 838. In both cases, our reluctance to entertain these constitutional defenses as grounds for prohibition was palpable.

In Fletcher v. State, supra, we further acknowledged that the United States Supreme Court had accorded constitutional dimensions to collateral estoppel by incorporating it into the Fifth Amendment bar against double jeopardy. See Ashe v. Swenson, 397 U.S. 436 (1970). The same rationale should apply to res judicata because if a charge or proposed penalty has been decided in a prior criminal proceeding in favor of the defendant, the retrying of that same defendant for the same charge or penalty may well constitute double jeopardy. See, e.g., Bullington v. Missouri, 451 U.S. 430 (1981) (defendant could not be retried for the death penalty when previously acquitted by a jury of that penalty). Flence, we view Ford’s claim of res judicata in connection with the death penalty as a facet of double-jeopardy protection. In this connection, we have held that the proper remedy for a denial of a motion to dismiss based on double jeopardy is an interlocutory appeal. See Sherman v. State, 326 Ark. 153, 931 S.W.2d 417 (1996).

Ford, however, has eschewed an interlocutory appeal on his claims of res judicata and double jeopardy and chosen instead to include these claims in his prohibition petition regarding venue, after obtaining leave of the trial court to file the petition. Under these unique circumstances where a valid ground for prohibition exists in the form of a venue question, where the period for filing an interlocutory appeal has passed, and where leave of the court to file the petition was timely obtained, we will address the two remaining issues.

a. Res Judicata

We decline, however, to give res judicata effect to the federal district court’s finding that Ford is innocent of the death penalty. First, we have some doubt that failure of trial counsel to offer two mitigating circumstances results in such a finding. The U.S. Supreme Court in Sawyer v. Whitley, supra, specifically refused to consider the failure to instruct the jury on mitigating circumstances as a basis for finding innocence of the death penalty:

Sensible meaning is given to the term “innocent of the death penalty” by allowing a showing in addition to innocence of the capital crime itself a showing that there was no aggravating circumstance or that some other condition of eligibility had not been met.
But we reject petitioner’s submission that the showing should extend beyond these elements of the capital sentence to the existence of additional mitigating evidence.

505 U.S. at 345. See also Snell v. Lockhart, 14 F.3d 1289, 1297 n.6 (8th Cir. 1994).

But, more importandy, we find no support in case law for the proposition that a finding by the federal district court of actual innocence of the death penalty as part of collateral review decides that issue on retrial. We view this case as substantially different from Bullington v. Missouri, supra. In Bullington, the Court was faced with the issue of whether a criminal defendant who had been acquitted of the death penalty under a bifurcated sentencing proceeding and had his conviction reversed on appeal could then be found guilty on retrial and sentenced to death under the same bifurcated sentencing scheme consistent with the double-jeopardy clause of the Fifth and Fourteenth Amendments. The Court noted that Missouri criminal procedure required the State to prove additional facts beyond a reasonable doubt in a separate proceeding in order to justify the sentence, and that because Bullington had been acquitted of the death penalty in such a proceeding in the original trial, he could not again be exposed to a sentence for which he had been acquitted.

The Bullington facts are not the case before us. Ford has not had a jury find him innocent of the death penalty. Indeed, just the contrary was the result of the first trial. Moreover, the only issue litigated on collateral attack in the case before us was whether trial counsel was ineffective in failing to present certain mitigating circumstances to the jury. The federal district court found that counsel was ineffective and, as a result, Ford was innocent of the death penalty. However, whether the evidence presented at trial was insufficient to expose Ford to the death penalty was not at issue.

Ford cites us to State v. Cumbo, 451 P.2d 333 (Az. Ct. App. 1969), in support of his res judicata point. That decision by the Arizona Court of Appeals reads in pertinent part:

Once a federal court upholds a collateral attack on a judgment of conviction following a defendant’s first state trial, the decision of the federal court becomes the law of the case. Further proceedings in any later trial based upon the same facts must be in conformity with the habeas corpus decision.

State v. Cumbo, 451 P.2d at 337. Even this authority, though, does not aid Ford as neither the federal district court nor the Eighth Circuit Court of Appeals made a specific determination that Ford was ineligible for the death penalty on retrial. Indeed, the federal district court vacated the conviction and gave the State a period of time in which to retry Ford without any express limitation on the penalties to be sought. We find no basis for an application of res judicata with regard to the death penalty.

b. Double Jeopardy.

Ford’s final argument is that the charges against him are barred by the Double Jeopardy Clause of the Fifth and Fourteenth Amendments to the United States Constitution and Article II, § 8 of the Constitution of the State of Arkansas. Yet, he cites no authority from any jurisdiction that has held that reversal of a conviction involving a violation of either Swain v. Alabama, 380 U.S. 202 (1965), or Batson v. Kentucky, 476 U.S. 79 (1986), entides him to a complete bar from subsequent prosecution.

This court has relied on the general principle announced in the landmark case of Ball v. United States, 163 U.S. 662 (1896), that a person who is convicted but has his conviction set aside on appeal may be retried, while the person who is acquitted may not again face jeopardy. See Timmons v. State, 290 Ark. 121, 717 S.W.2d 208 (1986).

Ford, however, points to United States v. Dinitz, 424 U.S. 600 (1976), and similar cases for the proposition that the bad-faith conduct of a prosecutor or other counsel or the judge which provokes a mistrial motion may bar retrial of the defendant. He argues that the systematic and intentional exclusion of African-Americans from the jury falls into this same category of prosecutorial misconduct which triggers double-jeopardy protection, even when a mistrial has not been declared. We discussed the Dinitz decision and others in Timmons v. State, supra, which involved an improper closing argument by the prosecutor, and concluded:

Looking to the holdings of United States v. Jorn, supra, and United States v. Dinitz, supra, and to the cases following the fundamental proposition of Ball v. United States, supra, we do not feel compelled to extend the Eighth Circuit Court of Appeals decision in United States v. Martin, supra, so as to apply the double jeopardy bar in a case where the appellant’s conviction has been overturned on appeal as opposed to mistrial before conviction occurs.

Timmons, 290 Ark. 127, 717 S.W.2d at 212. When a Batson problem has been determined to exist on appeal in this court, the remedy afforded has been to reverse and remand for a new trial. See, e.g., Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990); Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988). Cf. Cleveland v. State, 318 Ark. 738, 888 S.W.2d 629 (1994) (gender-based discrimination). We continue to view racial bias injury selection as a matter that can be corrected by a new trial and not as a circumstance that negates subsequent prosecution.

Writ denied.


text:
    Jimmy W. MILAM and James Milam v. BANK OF CABOT and Bill Thompson, Jointly and Severally
    96-899
    937 S.W.2d 653
    Supreme Court of Arkansas
    Opinion delivered February 10, 1997

      Ogles Law Firm, P.A., by: John Ogles, for appellants.

      Williams & Anderson, by: Timothy W. Grooms and J. Leon Holmes, for appellee Bank of Cabot.

      Hankins, Hicks, Madden & Blackwood, by: Stuart W. Hankins, for appellee Bill Thompson.
   Robert L. Brown, Justice.

This appeal is from a summary judgment in favor of appellees Bank of Cabot and Bill Thompson. The appellants, Jimmy W. Milam (son) and James Milam (father), contend that the trial court erred in granting summary judgment on their claims of defamation, invasion of privacy, negligence, breach of fiduciary duty, and outrage. We disagree and affirm the summary judgment.

On March 23, 1994, the Milams filed their complaint against Thompson and the Bank of Cabot and asserted the claims that are the subject of this appeal. These claims were based on statements allegedly made by Thompson on April 22, 1991, to two railroad policemen for Union Pacific Railroad — William Wood and J.S. Trent. Prior to filing the complaint, the Milams owned and operated Milam Construction Co. Thompson owned and operated Transloading Services, Inc. Although both businesses were independent contractors hired by Union Pacific, they were not in competition with each other. Thompson was also a shareholder and a member of the board of directors of the Bank of Cabot, which is where the Milams maintained their accounts. The complaint sought to impute the conduct of Thompson to the Bank of Cabot under an agency relationship that purportedly arose from Thompson’s position as an officer of the bank.

The complaint also asserted that Thompson provided Wood with confidential banking information regarding the financial condition of the Milams. Attached to the complaint was a report prepared by William Wood, dated April 23, 1991, which was acquired by the Milams’ counsel under the Freedom of Information Act in August 1993. The report revealed that Jimmy W. Milam was being investigated by Union Pacific Railroad in connection with stolen railroad ties. Included in the Wood report were statements attributed to Thompson: (1) that Jimmy W. Milam’s report to the Cabot police department of three stolen tractors was “probably insurance fraud”; (2) that Jimmy W. Milam’s net worth was $3,500; (3) that James Milam was worth $630,000; (4) that James Milam was paid $1,500 per month by Milam Construction Co.; (5) that Milam Construction Co. was only showing profits of $500 per month; (6) that Jimmy W. Milam had recently been in a “financial bind”; (7) that Thompson thought it was a good idea to subpoena Jimmy W. Milam’s checks from the Bank of Cabot; and (8) that James Milam had a high standard of living.

The appellees answered and moved to dismiss the complaint. They admitted that Thompson met with Wood and Trent at Wood’s request and that he answered questions about the activities of Jimmy W. Milam. Appellees asserted in their answer that Thompson did not recall giving any specific financial information to the railroad policemen about the Milams because he did not recall having that information. They also asserted that he had no knowledge of the Wood report, and that the Bank of Cabot had no knowledge of the Thompson interview or Wood report until some time after it had taken place. Appellees denied that Thompson was an officer of the bank but admitted that he was a shareholder and member of the bank’s board of directors.

Pleading affirmatively, appellees contended that the defamation claim was barred by the one-year statute of limitation set out in Ark. Code Ann. § 16-56-104(3) (Supp. 1995). They further claimed that Thompson’s statements were made pursuant to a contractual duty with Union Pacific, and thus qualified for a privilege as being given during the course of a criminal investigation. They also asserted that the debtor-creditor relationship between the Milams and the Bank of Cabot did not equate to a fiduciary relationship. Finally, they urged that any damages suffered by Jimmy W. Milam were proximately caused by his February 28, 1992 arrest for theft by receiving in connection with railroad ties.

The appellees next moved for summary judgment. Attached to the motion were affidavits from Wood and Trent wherein they averred that they were certified law enforcement officers who questioned Thompson in their official capacities as railroad policemen. Also attached to the motion was an affidavit from Thompson, which stated that he had been a member of the bank’s board of directors since 1988. Thompson averred that he held a good-faith belief that he had both a contractual obligation and a civic duty to answer questions posed by Wood and Trent and that he believed the factual information given in response to their questions was accurate. He said he did not know about the existence of Wood’s report and that he did not recall making a number of the statements provided in that report. Also accompanying the motion was an affidavit from J.M. Park, chairman of the Bank of Cabot’s board of directors, which provided that neither he nor any officer, director, or employee of the bank had any knowledge of the criminal investigation or the interview given by Thompson until after its occurrence.

The Milams responded that the one-year statute of limitation on the defamation claim was tolled because they could not have been “presumed to have had reasonable knowledge of the statement” until its discovery in August 1993. The Milams submitted no affidavits to support their response; nor did they depose Thompson. They did, however, file the deposition of William Wood some eight months after their response to the summary-judgment motion was filed. The appellees later supplemented their motion for summary judgment with deposition testimony from both Jimmy W. Milam and James Milam to establish that neither suffered any damages as a result of the Wood report.

The trial court granted appellees’ motions for summary judgment and concluded that the defamation claim was barred by the one-year statute of limitation. With respect to the remaining causes of action, the trial court determined that no genuine issues of material fact existed and that the claims were not supported by law. The trial court further concluded that the Milams had failed to meet proof with proof.

I. Summary Judgment

The Milams advance the argument that the trial court erred in granting summary judgment. This court’s standard of review with respect to summary judgment is as follows:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.

Renfro v. Adkins, 323 Ark. 288, 295, 914 S.W.2d 306, 309-10 (1996) (internal citations omitted); Cash v. Lim, 322 Ark. 359, 360-62, 908 S.W.2d 655, 656-57 (1995); Oglesby v. Baptist Medical Sys., 319 Ark. 280, 284, 891 S.W.2d 48, 50 (1995). Once a moving party establishes a prima facie entidement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must demonstrate a genuine issue of material fact by meeting proof with proof. Renfro v. Adkins, supra.

A. Defamation

Jimmy W. Milam claims that Thompson’s statement that he was probably involved in insurance fraud was defamation per se. More precisely, the Milams’ complaint alleges slander. It is clear that an action for slander must be brought within one year of publication. Ark. Code Ann. § 16-56-104(3) (Supp. 1995); Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988). Milam asserts that he could not be “presumed to have [had] reasonable knowledge of the statement” about insurance fraud because it was made to Wood in secret and thereafter concealed by Wood. In support of this tolling argument, Milam cites First Pyramid Life Ins. Co. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992). In that case, this court restated what is now the classic language for determining the existence of fraudulent concealment, sufficient to toll a statute of limitation:

No mere ignorance on the part of the plaintiff of his rights, nor the mere silence of one who is under no obligation to speak, will prevent the statute bar. There must be some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiffs cause of action concealed or perpetrated in a way that it conceals itself. And if the plaintiff by reasonable diligence, might have detected the fraud he is presumed to have had reasonable knowledge of it.

First Pyramid Life Ins. Co. v. Stoltz, 311 Ark. at 319, 843 S.W.2d at 845, quoting Wilson v. General Elec. Capital Auto Lease, Inc., 311 Ark. 84, 87, 841 S.W.2d 619, 620-21 (1992) (internal citations omitted).

The slander claim is clearly time-barred. As the Bank of Cabot points out, once it is clear from the face of the complaint that an action is time-barred, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitation was tolled. See First Pyramid Life Ins. Co. v. Stoltz, supra. Further, the act of fraudulent concealment must have been committed by those now invoking the benefit of the statute of limitation, namely Thompson and the Bank of Cabot. See id.; Dupree v. Twin City Bank, 300 Ark. 188, 777 S.W.2d 856 (1989). There was absolutely no proof presented by the Milams that either Thompson or the Bank of Cabot had any involvement in hiding the fact that a statement concerning insurance fraud was made. In fact, the affidavits of Thompson and J.M. Park provide that they had no knowledge of the Wood report. Jimmy W. Milam, though, certainly knew that he was the subject of investigation for theft by receiving of railroad ties within a year of the Wood report. We conclude that his tolling defense fails for lack of proof.

B. Invasion of Privacy

The Milams next urge that summary judgment was inappropriate for their invasion-of-privacy claim. Arkansas has recognized the existence of four actionable forms of invasion of privacy:

(1) appropriation, which consists of the use of the plaintiffs name or likeness for the defendant’s benefit; (2) intrusion, which is the invasion by one defendant upon the plaintiffs solitude or seclusion; (3) public disclosure of private ¡facts, which is the publicity of a highly objectionable kind, . . . even though it is true and no action would he for defamation; and (4)fabe light in the public eye, consisting of publicity which places the plaintiff in a false light before the public.

Dunlap v. McCarty, 284 Ark. 5, 9, 678 S.W.2d 361, 363-64 (1984) (emphasis in original). See Dodrill v. Ark. Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979).

As is pointed out by the Bank of Cabot, the Milams do not state which theory of privacy invasion applies to their case. It is also difficult to ascertain both from the complaint and from the Milams’ argument whether the invasion was caused by the alleged acquisition of the financial information from the bank by Thompson or Thompson’s alleged communication of it to the railroad policemen. In addition, the Milams do not cite any authority to support violation of their privacy rights, and we decline to research this point for them. See Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996); Ransopher v. Chapman, 302 Ark. 480, 791 S.W.2d 686 (1990). In sum, we will not develop this claim for the Milams. That was their responsibility. A conclusory allegation by the Milams is not sufficient to ward off summary judgment.

C. Negligence and Breach of Fiduciary Duty

The Milams alleged in their complaint and urge on appeal that the appellees were negligent and breached a fiduciary duty when confidential banking information was disclosed to Wood and Trent. Also, they assert that the Bank of Cabot itself was negligent in failing to supervise Thompson and in not adequately protecting their confidential financial records. While these appear to be very separate claims, appellants interweave them and do not distinguish them in their argument.

In support of their twin claims, the Milams quote extensively and almost verbatim from an ALR annotation without crediting American Law Reports for the research. See Edward L. Raymond, Jr., Annotation, Bank’s Liability, Under State Law, For Disclosing Financial Information Concerning Depositor or Customer, 81 A.L.R.4th 377 (1990 & Supp. 1996). We do not countenance the detailed borrowing of legal arguments from treatises without proper acknowledgment of the source. But in addition to this lapse, the Milams do not present any analysis of the annotation or discuss which of the referenced cases this court should follow. Nor is there any mention of the facts of the instant case in connection with the cases briefed from other jurisdictions; nor any attempt to apply these facts to a specific legal standard.

We emphasized in J. W. Reynolds Lumber Co. v. Smack-over State Bank, 310 Ark. 342, 836 S.W.2d 853 (1992), the necessity of factual underpinnings to establish a fiduciary relationship with a bank:

Here there were no facts to indicate that Reynolds and the Bank had any relationship beyond that of debtor/creditor. That being so, there was no fiduciary relationship and the chancellor did not err in dismissing the claim based on implied trust.

J.W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. at 347, 836 S.W.2d at 855. See also Marsh v. National Bank of Commerce, 37 Ark. App. 41, 822 S.W.2d 404 (1992)(noting that the customer asserting a fiduciary relationship with his bank has the burden of proving the relationship is beyond that of debtor/creditor). We hold that the Milams failed to submit any proof to convert what is essentially a debtor/creditor relationship with the Bank of Cabot into a fiduciary one. Nor is proof presented to establish that Thompson was acting as an agent of the bank when he met with the railroad policemen in April 1991 or that there was any failure to supervise on the part of the bank. In short, the Wood report, standing alone, is not sufficient to prevent summary judgment.

D. Outrage

The Milams’ final claim concerns the tort of outrage. This court has stated that we take “a very narrow view of claims of outrage.” Renfro v. Adkins, 323 Ark. at 299, 914 S.W.2d at 311. We have said that in order to succeed on this claim, a plaintiff must prove:

(1) the defendant intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous and was utterly intolerable in a civilized community; (3) the defendant’s conduct was the cause of the plaintiff’s distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it.

Hollomon v. Keadle, 326 Ark. 168, 931 S.W.2d 413 (1996); Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996); Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761 (1996).

It is clear that the appellees are entitled to summary judgment on the outrage claim because the proof presented by the appellees on lack of emotional distress on the part of the Milams went uncontested.

Affirmed.

       The February 28, 1992 date may have been the date the criminal charge was filed and not the date of the arrest. The record is unclear on this point.


author: Ray Thornton, Justice.

text:
    Horace D. GENTRY v. Athanett O. GENTRY
    96-1063
    938 S.W.2d 231
    Supreme Court of Arkansas
    Opinion delivered February 10, 1997

      D. Scott Hickam. for appellant.

      Clark & Clark, by: Jim Clark, for appellee.
   Ray Thornton, Justice.

This case presents the issue whether an agreement to divide future Social Security benefits can be enforced by the courts of Arkansas notwithstanding the provisions of federal law prohibiting the transfer or assignment of such benefits. After twenty-eight years of marriage, the appellant, Horace D. Gentry, and the appellee, Athanett O. Gentry, were divorced in 1984. They entered into a property settlement which was approved by the court and which included among its provisions the following paragraph nine:

In the event that the husband is entitled to Social Security payments, the wife shall be entided and shall receive one half of all payments that are made to him.

Mr. Gentry began receiving benefits in September, 1995, and did not pay Ms. Gentry the agreed one-half of the benefits. She filed a Petition for Citation for Contempt because of Mr. Gentry’s refusal to obey the court-ordered property-settlement agreement. Mr. Gentry admitted entering into the agreement, but contended that his Social Security benefits were nonassignable under federal law.

The matter was heard in June 1996, and the court ruled the property-settlement agreement was an enforceable contract; that Mr. Gentry owed Ms. Gentry $3, 290.00 reflecting her one-half share of the Social Security benefits already received and that Mr. Gentry would owe one-half of his future benefits.

Mr. Gentry appeals contending that paragraph nine of the agreement violates 42 U.S.C. § 407, and is unenforceable under the Supremacy Clause of the United States Constitution. We agree, and reverse the decision of the chancery court.

The Social Security Act provides that:

(a) The right of any person to any future payment under this sub-chapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

42 U.S.C. § 407(a) (emphasis added). The United States Supreme Court has adopted the position that § 407(a) imposes, “a broad bar against the use of any legal process to reach all social security benefits.” Philpott v. Essex County Welfare Bd., 409 U.S. 413, 417 (1973). In a case interpreting a similar prohibition against assignment of future retirement benefits the Supreme Court stated that by enacting such anti-assignment statutes, Congress has, “afforded recipients [protection] from creditors, taxgatherors, and all those who would anticipate the receipt of benefits”. Hisquierdo v. Hisquierdo, 439 U.S. 572, 575-576 (1979).

The United States Supreme Court found in Bennett v. Arkansas, 485 U.S. 395, (1988), that an Arkansas statute was in conflict with § 407 of the Social Security Act, and held that the Supremacy Clause precluded Arkansas from attaching a prisoner’s Social Security benefits. Id. at 397.

The United States Supreme Court in Philpott held that the provisions of 42 U.S.C. § 407 barring the use of “any legal process” to reach social security benefits" bars all claimants, including a state. Philpott, 409 U.S. at 417.

It is generally agreed that under the Supremacy Clause, any state action is preempted by a conflicting federal law. Kirk v. Kirk, 577 A.2d 976, 979 (R.I. 1990); see also Swan v. Swan, 720 P.2d 747, 751-52 (Or. 1986) (stating that Congress intended to preempt state property-division law as applied to Social Security benefits of a spouse upon a divorce) and Olson v. Olson, 445 N.W.2d 1, 11 (N.D. 1989) (holding that Social Security is immune from adjustment by state courts in dividing marital property).

The thrust of these decisions is that state courts are without power to take any action to enforce a private agreement dividing future payments of Social Security when such an agreement violates the statutory prohibition against transfer or assignment of future benefits. See also Boulter v. Boulter, 930 P.2d 112 (Nev. 1997).

The Social Security statute itself specifically prohibits assignment of “future” receipt of benefits, and not those benefits already received. Once Social Security benefits are received, they become the recipient’s personal property and he can do whatever he wishes with them, even use them to pay preexisting obligations. United States v. Eggen, 984 F.2d 848, 850 (7th Cir. 1993). We have applied that principle in this state when we held that a lump-sum settlement already received from Social Security is marital property and is subject to division. Bagwell v. Bagwell, 282 Ark. 403, 405, 668 S.W.2d 949, 950 (1984).

We understand the rationale followed by the chancery court in holding that contracts entered into voluntarily must be enforced. It is well established that when parties enter voluntarily into an independent property-settlement agreement that is incorporated into a decree of divorce, it cannot subsequently be modified by the court. Law v. Law, 248 Ark. 894, 897, 455 S.W.2d 854, 856 (1970); Kennedy v. Kennedy, 53 Ark. App. 22, 25, 918 S.W.2d 197, 199 (1996).

The Court of Appeals in Kennedy found no merit in' the appellee’s argument that the payment of alimony after he reached retirement age violated federal law. An exception to the § 407(a) provision prohibiting access of others to Social Security benefits was made in 1975 when 42 U.S.C. § 659(a) was enacted. This statutory exception to § 407 makes benefits subject “to legal process. . . to provide child support or make alimony payments,” Congress specifically excluded from its definition of alimony any community-property settlement, equitable distribution of property, or other division of property between spouses. 42 U.S.C. § 662(c). The Rhode Island Supreme Court observed in Kirk v. Kirk that federal law has carefully limited a divorced spouse’s ability to reach Social Security benefits, and stated: “Therefore, these Social Security benefits may be reached by a former spouse for alimony or child support but not for property division.” Kirk, 577 A.2d at 980.

There is no award of alimony in this case. The plain language of paragraph nine makes it clear that “[i]n the event that the husband is entitled to Social Security payments, the wife shall be entided and shall receive. . .” a share of future Social Security benefits potentially belonging to Mr. Gentry. This amounts to a transfer or assignment of future benefits prohibited by § 407, and therefore paragraph nine was invalid and unenforceable when signed. As this issue is a matter of first impression in Arkansas, we note with interest the 1997 decision by the Supreme Court of Nevada where a similar question was resolved in Boulter v. Boulter. In a well-reasoned opinion, that court stated:

Although social security recipients may use the proceeds of their social security, after their receipt, to satisfy preexisting obligations, they may not contract to transfer their unpaid social security benefits. Thus, in contracting to give Noleen one-half of his benefits before he was eligible to receive them, Ronald ineffectually “transferred his right” to the benefits. Because Ronald and Noleen attempted to transfer their rights to future benefits in violation of 42 U.S.C. § 407(a), the agreement was invalid and neither this court nor the district court may order its enforcement. Moreover, the fact that the property settlement agreement is entered into voluntarily by the parties is without relevance.

Boulter v. Boulter, 1997 WL at 2.

We have determined that the attempted future assignment of one-half of whatever benefits Mr. Gentry might receive from Social Security was preempted by the provisions of 42 U.S.C. § 407(a), and we hold that the chancery court was without jurisdiction to enforce an award of one-half of his social security benefits to Ms. Gentry.

Reversed and remanded.


author:
Ray Thornton, Justice.
      Tom Glaze, Justice,

text:
    Gregory R. LARIMORE v. STATE of Arkansas
    CR 96-219
    938 S.W.2d 818
    Supreme Court of Arkansas
    Opinion delivered February 10, 1997

      Daniel G. Ritchey, Kent J. Rubens, and Bill W. Bristow, for appellant.

      Winston Bryant, Att’y Gen., by: Oían W. Reeves, Sr. Asst. Att’y Gen., for appellee.
   Ray Thornton, Justice.

Petitioner Gregory R. Larimore was convicted in 1990 of first-degree murder in the death of his wife, June Larimore. We reversed that conviction, and he was again convicted in 1993 upon retrial. We affirmed the second conviction, and the mandate was issued on June 29, 1994. On May 3, 1995, Larimore filed a petition for postconviction relief under Ark. R. Crim. P. 37. His Rule 37 petition was based on allegations of prosecutorial misconduct in faffing to disclose exculpatory evidence to the defense. Following the State’s motion to dismiss, he amended his petition and asserted that relief should alternatively be provided through a writ of error coram nobis. Based on stipulations entered into solely for the purpose of the motion to dismiss, the trial court dismissed the petition, stating it lacked jurisdiction because the petition was untimely filed. Larimore appeals the order of dismissal. We affirm in part, reverse in part, and grant leave to the Crittenden County Circuit Court for consideration of a writ of error coram nobis.

As this is the third time this case has come before us, a review of the facts is appropriate.

Matters from Earlier Proceedings

Shortly before noon on January 11, 1990, the body of June Larimore was found on the bedroom floor of her Blytheville home. She had been stabbed 134 times with a knife that had been cleaned and replaced in a cutlery block in the kitchen. Her husband, petitioner Larimore, arrived at work before 7:00 a.m. According to him, his wife was alive and sleeping in bed when he left their home that morning between 6:30 and 6:45 a.m.

At the first trial, Larimore was convicted of the first degree murder of his wife and sentenced to life imprisonment. The State’s case was structured on the theory that she was murdered between 2:00 and 4:00 a.m., and could not have been alive when Larimore left for work. In Larimore v. State (Larimore I), 309 Ark. 414, 833 S.W.2d 358 (1992), this court reversed and remanded because the jury was impermissibly allowed to take excluded evidence into the jury room for deliberation.

Upon retrial, Larimore was again convicted and sentenced to twenty-five years’ imprisonment. This court affirmed the second conviction. Larimore v. State (Larimore II), 317 Ark. 111, 877 S.W.2d 570 (1994). Because all of the evidence was circumstantial, time of death was a crucial issue. Mrs. Larimore’s body was found at the couple’s home by her sister around 11:30 a.m. on January 11, 1990. It was undisputed that Larimore reported to work before 7:00 a.m., that there was no blood on him, and that his appearance was normal. Id. at 116, 877 S.W.2d at 572. Clearly, if his wife’s death occurred after 6:45 a.m., he could not have killed her. It was undisputed that he was home with her all night, and that no one else was there. If her death occurred before 6:45 a.m., a jury could conclude beyond a reasonable doubt that he was guilty.

Before the second trial commenced, the defense .was provided the original report form prepared by an employee of the medical examiner’s office on the day of the murder. It appeared that there had been a time of death of “7:00 a.m.” entered on the report, but this notation had been whited out and the words “time unknown” written over the white-out. Larimore cross-examined the state medical examiner, Dr. Fahmy Malak, about this document, and he testified that he had no knowledge about any alteration to the document. Dr. Malak testified that the time of death was between 1:00 a.m. and 2:00 a.m. . Medical experts for Larimore testified that the time of death was between 7:00 a.m. and 8:00 a.m.

In affirming Larimore’s second conviction, we wrote:

Appellant also argues that the original medical examiner’s report was altered. The name of the victim on the original document was covered with “white out” and the name “Demetria” was changed to “Laura.” The victim’s full name was Demetria June Larimore. It also appears that there was once a time of death entered on the report, but someone wrote “time unknown” over white-out. These were factors to be considered by the jury in determining the credibility of Dr. Malak and his reports. Credibility is for a jury, not an appellate court, to determine.

Larimore II, 317 Ark. at 118, 877 S.W.2d at 573.

The New Evidence and Proceedings

On December 29, 1994, Ralph Hill, Chief of Police of the Blytheville Police Department, was being deposed as a witness in a civil wrongful-death case brought by Mrs. Larimore’s family. Chief Hill testified that Dr. Malak had expressed to him that one of his tentative opinions about the time of death was that it occurred between 6:00 and 7:00 a.m. on January 11, 1990.

On May 3, 1995, Larimore filed his petition for Rule 37 relief. This petition did not refer to a writ of error coram nobis, but asked the trial court to either declare the judgment void, or set aside the conviction and order a new trial. On May 22, the State filed a motion to dismiss, asserting that the petition was untimely, and that the trial court lacked jurisdiction to grant the relief requested. Larimore filed a response to the motion to dismiss, contending that if the trial court lacked jurisdiction to set aside a conviction under Rule 37, such an interpretation of the Rule would deny him due process, and that a writ of error coram nobis should issue.

For the purpose of the hearing on the State’s motion to dismiss, the parties entered in to a “Stipulation of Undisputed Facts” which conceded that the State had knowledge of exculpatory evidence that it withheld from the defense. The trial court found that the stipulation established a violation of due process. Notwithstanding this finding, the motion to dismiss was granted because the petition was not timely filed. From that order comes this appeal.

The Issues

Larimore lists seven assignments of error, but actually presents two issues: (1) whether the trial court erred in dismissing this claim as a Rule 37 petition for postconviction relief; and (2) whether the trial court erred in determining that a writ of error coram nobis is subject to the same time limits as a Rule 37 petition. We first consider the issues relating to Rule 37.

Rule 37 of the Arkansas Rules of Criminal Procedure provides the avenue for postconviction relief under circumstances set out in the Rule. Subsection (c) provides that petitions entered after the affirmance of an appeal must be filed within sixty days after the mandate was issued by the appellate court. Hamilton v. State, 323 Ark. 614, 615, 918 S.W.2d 113, 113 (1996) (examining Ark. R. Crim. P. 37.2(c)). In Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988), this court stated:

There is no constitutional right to a postconviction proceeding; but when a state undertakes to provide collateral relief, due process requires that the proceeding be fundamentally fair.

Id. at 699, 751 S.W.2d at 339 (citing Pennsylvania v. Finley, 481 U.S. 551 (1987)). The court then found that Rule 37’s requirement that the issue could not have been raised in the trial court or upon appeal was a “fundamentally fair” requirement that passed constitutional muster. Id.

Larimore argues at length that this sixty-day filing requirement is an unconstitutional deprivation of due process; however, he provides no citation of authority that would indicate that the sixty-day deadline is fundamentally unfair. We affirm the trial court’s dismissal of the petition for relief under Rule 37 as untimely.

We next consider whether a writ of error coram nobis is subject to the same time limits as a Rule 37 petition. In Williams v. State, 289 Ark. 385, 711 S.W.2d 479 (1986), this court expressly held that “[ejrror coram nobis proceedings are not interchangeable with proceedings under Rule 37.” Id. at 387, 711 S.W.2d at 481. In other words, a Rule 37 proceeding is for a mistake at trial while a writ of error coram nobis is appropriate when an issue was not addressed or could not have been addressed at trial because it was somehow hidden or unknown.

Both Larimore and the State confused the postconviction relief provided by Rule 37 with the completely distinct matters for which a party may obtain relief by a writ of error coram nobis. Larimore’s revised petition was labelled as “a writ of error coram nobis, Rule 37, and a writ of habeas corpus.” The trial court mistakenly adopted with approval the State’s assertion: “Call the Petition what you like, a writ of error coram nobis, a writ of habeas corpus, or simply a petition, it still must comply with the limitation of Rule 37 and be filed within 60 days.”

The time requirement for seeking a writ of error coram nobis is not limited to sixty days, but due diligence is required in making application for relief. Troglin v. State, 257 Ark. 644, 646, 519 S.W.2d 740, 741 (1975). See also John H. Haley, Comment, Coram Nobis and The Convicted Innocent, 9 Ark. L. Rev. 118 (1954-55). The Haley article, which we cited with approval in Penn v. State, 282 Ark. 571, 576, 670 S.W.2d 426, 429 (1984), noted that due diligence requires that (1) the defendant be unaware of the fact at the time of trial; (2) he could not have, in the exercise of due diligence, presented the fact at trial; or (3) upon discovering the fact, did not delay bringing the petition. Haley, supra, at 125.

The trial court’s error in applying a sixty-day time limit does not settle the question of whether a writ of error coram nobis is appropriate in this case. Where, as here, the record addressed by the writ is lodged in this court, we make the initial determination to grant, or not to grant, leave for consideration of the petition for a writ by the trial court. In this case, the trial court barred consideration of the writ as untimely, and Larimore appealed. We treat this appeal as a request by Larimore for leave to present his petition for a writ of error coram nobis to the trial court. If we grant leave, the trial court must then determine the merits of the petition.

This follows the rule first stated in State v. Hudspeth, 191 Ark. 963, 88 S.W.2d 858 (1935). An issue in that case was whether a writ of error coram nobis is available after appeal. Id. at 970, 88 S.W.2d at 861. We noted that by having previously heard and decided such cases, we had tacitly held that the writ would lie, and enunciated the foEowing rule:

We think, however, that the better rule is that, when a judgment has been affirmed by this court, no application for the writ of error coram nobis may be made to the trial court without permission to make such application has been given by this court, and hereafter this rule will be enforced.

Id. at 971, 88 S.W.2d at 861. This requirement was restated in Mitchell v. State, 234 Ark. 762, 763, 354 S.W.2d 557, 558 (1962), where we pointed out that after a case is appealed to this court we acquire jurisdiction. A circuit court can entertain a writ of error coram nobis after appeal only if we grant permission. Id. Similarly in Penn v. State, 282 Ark. at 573, 670 S.W.2d at 428, the petitioner was granted leave by this court to file the petition for consideration of a writ of error coram nobis by the trial court. We stated:

Penn is granted permission to file this petition with the trial court seeking a writ of error coram nobis, and the trial court is reinvested with jurisdiction to hear the petition, conduct a hearing and decide whether the writ is in order. If the court grants the writ, the remedy is a new trial; if it denies the writ, the remedy is a writ of certiorari.

Id., 670 S.W.2d at 428.

Should Leave for Consideration of a Writ of Error Coram Nobis be Granted?

The writ of error coram nobis is an extraordinary remedy which should be allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature, and a presumption of regularity attaches to the criminal conviction being challenged. United States v. Morgan, 346 U.S. 502, 512 (1954).

In the present case, we consider the applicability of the writ of error coram nobis to address errors of the most fundamental nature. In Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996), we held that the writ was unavailable to explore allegedly misleading responses by a juror during voir dire, and stated:

Error coram nobis is a rare remedy. It is available only where there is an error of fact extrinsic to the record, such as insanity at the time of trial, a coerced guilty plea or material evidence withheld by the prosecutor, that might have resulted in a different verdict. Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990). The writ has also been used in case's in which a third party confessed to the crime during the time between conviction and appeal. Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990).

Id. at 109, 925 S.W.2d at 775.

For the writ of error coram nobis to issue following the affirmance of a conviction by this court, a fundamental error extrinsic to the record, such as prosecutorial misconduct in withholding material evidence, must be shown. When the question of insanity at the time of trial was not raised until after we had affirmed conviction, we allowed the trial court to issue the writ for the púrpose of inquiring into the question of sanity of the accused at the time of the trial. Hydrick v. State, 104 Ark. 43, 45, 148 S.W. 541, 541-42 (1912) (citing Johnson v. State, 97 Ark. 131 (1911)).

When there is no showing of a fundamental error, such as set forth in Davis, we have made it clear that newly discovered evidence is not a basis for relief under coram nobis. Smith v. State, 301 Ark. at 375-76, 784 S.W.2d at 595-96. Decisions from other jurisdictions support the distinction between fundamental error and newly discovered evidence. In Thompson v. State, 18 So.2d 788, 789 (Fla. 1944), the Florida Supreme Court stated:

Remedy by way of coram nobis may not be invoked solely on the ground that a material witness testified falsely at the trial concerning a material issue of the case, or withheld facts that might have been material. Neither may newly-discovered evidence going merely to the merits of the issue be used as a basis for the writ. Lamb v. State, 91 Fla. 396, 107 So. 535. Moreover, before a writ of error coram nobis may issue it must appear that the facts alleged as grounds for its issuance are such as would have precluded the entry of a judgment had they been available at the trial; not that such facts might have produced a different result had they been known to judge and jury. Lamb v. State, supra; Hysler v. State, 146 Fla. 593, 1 So.2d 628; Sullivan v. State, Fla., 18 So.2d 163.

Id.

As we consider whether this case presents issues of a fundamental nature compelling review of facts extrinsic to the record, we again note that the State entered into a “Stipulation of Undisputed Facts” which admitted that the State withheld and suppressed significant evidence which was exculpatory of the defendant. This stipulation formed the basis for the trial court’s findings that the State withheld and suppressed exculpatory evidence from the defendant, which was material with respect to the crucial issue of time of death; that the defendant discovered the concealed exculpatory evidence after the time to file a Rule 37 petition had expired; and that the stipulation established a due process violation.

The effect of this stipulation is that the State concedes that its prosecutorial misconduct violated the constitutional principles of due process as set forth in Brady v. Maryland, 373 U.S. 83 (1963). This concession by the State leads us to grant leave for consideration of a writ of error coram nobis by the trial court.

In considering the merits of the petition, the trial court should take notice of the record before us in this proceeding and the record in the previous Larimore appeals. A review of the record in this appeal makes it clear that the State will not be bound by the “Stipulation of Undisputed Facts” when there is a hearing on the merits of Larimore’s petition.

We also notice that the record in Larimore II discloses substantial questions of fact for determination by the trial court in considering whether to grant the writ. For example, the record reflects that Dr. Malak was cross-examined about his opinion as to the time of death, with attention focused on a whited out section of the medical examiner’s form which appeared to have reflected a time of death of “7:00 a.m.” before the white-out was applied and the words “time unknown” written on top of the white-out. It appears on the face of the form that the report was prepared by Bill Carlos based on a 2:40 p.m. telephone report from Ralph Hill on January 11, the date of the murder.

As the trial court considers whether to grant the writ, the following guidelines that we set forth in Troglin v. State are applicable:

(1) The function of the writ of coram nobis is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment;
(2) Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. The court is not required to accept at face value the allegations of the petition;
(3) Due diligence is required in making application for relief, and, in the absence of a valid excuse for delay, the petition will be denied; and,
(4) The mere naked allegation that a constitutional right has been invaded will not suffice. The application should make a full disclosure of specific facts relied upon and not merely state conclusions as to the nature of such facts.

Troglin, 257 Ark. at 645-46, 519 S.W.2d at 741.

The trial court is in a good position to consider and test the merits of the petition and has the discretion to grant or deny it. The factual determinations of what information was available to Larimore and what information was concealed or suppressed are essential in deciding whether the writ should be granted. If the petition is granted, there will be a new trial. If the petitioner fails in his burden of proof, or if the matters proven do not establish compelling circumstances requiring the extraordinary relief afforded by a writ of error coram nobis, then such a determination will be based upon a full hearing, consideration of the allegations, and application of principles of law to the findings of fact.

We affirm the dismissal of the Rule 37 petition, reverse the holding that the time limits of Rule 37 apply to coram nobis, and grant leave to the Crittenden County Circuit Court for consideration whether a writ of error coram nobis should be issued. The trial court is reinvested with jurisdiction to hear the petition, conduct a hearing, and decide whether the writ should be granted.

Glaze and Newbern, JJ., concur in part and dissent in part.

Tom Glaze, Justice,

concurring in part and dissenting in part. The majority correctly denies Larimore’s request for Rule 37 relief as untimely; however, it then mistakenly reverses the trial court and grants Larimore leave to request a writ of error coram nobis. Arkansas law clearly reflects that a convicted defendant’s request for error coram nobis relief can only be granted after the trial court has lost jurisdiction and before this court has affirmed the defendant’s case on appeal. Edgemon v. State, 292 Ark. 465, 730 S.W.2d 898 (1987) (modified on another point by Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990)); Stone v. State, 290 Ark. 203, 718 S.W.2d 108 (1986); State v. Scott, 289 Ark. 234, 710 S.W.2d 212 (1986); Williams v. State, 285 Ark. 444, 688 S.W.2d 285 (1985); Pickens v. State, 284 Ark. 506, 683 S.W.2d 614 (1985); Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). In other words, petition for writ of error coram nobis is not available after this court has reviewed the case. The Penn court stated the reason for the limited period for fifing such a petition as follows:

We emphasize that we do not open the door to other petitions [for writ of coram nobis] beyond those that would qualify under the facts in this case, especially the fact that it is presently between trial and. appeal and can easily provide for an early hearing before the court that just heard the case. (Emphasis added.)

In the present case, this court, after denying a petition for rehearing, affirmed Larimore’s conviction on June 27, 1994, but Larimore did not file a petition for postconviction relief, including coram nobis relief, until May of 1995. See Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). Larimore’s petition for writ of coram nobis was decidedly late when requested of the trial court below, and is likewise late in his request to this court on appeal.

One last point should be made, and it is that this court has plainly held that a writ of error coram nobis cannot be granted on the basis of newly discovered evidence. Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990); Williams, 285 Ark. 444, 688 S.W.2d 285. Here, Larimore’s petition is grounded on new evidence resulting from the deposing of Officer Ralph Hill in a civil wrongful-death case brought by Mrs. Larimore’s family. That new evidence, of course, asserted that Dr. Fahmy Malak had stated an earlier but tentative opinion which was consistent with Larimore’s defense as to the time of Mrs. Larimore’s death. Obviously, Hill’s testimony was newly discovered evidence, and not the type of grounds that would warrant the granting of a writ of coram nobis under our prior holdings. This, too, is another reason why Larimore’s petition should be denied.

In conclusion, I note Larimore’s reliance on some earlier Arkansas cases that have held it was within the power of the trial court to grant the writ of error coram nobis after the expiration of the term in which the judgment was rendered. Hardwick v. State, 220 Ark. 464, 248 S.W.2d 377 (1952); Hydrick v. State, 104 Ark. 43, 148 S.W. 541 (1912). Those cases, however, were decided before Arkansas adopted new postconviction procedures. See Rule 1 of Arkansas Rules of Criminal Procedure (1965); now Rule 37 of the Arkansas Rules of Criminal Procedure. Before 1965, convicted defendants were relegated to motions for new trial, in arrest of judgment, and other relief such as petitions for extraordinary writs for habeas corpus or coram nobis. See Case v. Nebraska, 381 U.S. 336, 338 (1964) (Clark, J., concurring).

Since Arkansas has provided an effective postconviction procedure for convicted defendants, this court has correspondingly narrowed the grounds and time needed for petitioning for writs of coram nobis. Accordingly, this court has stated that a petition for writ of error coram nobis is not available after an appellate court reviews a case. Edgemon, 292 Ark. 465, 730 S.W.2d 898. The Edgemon court, quoting Williams, 285 Ark. 444, 688 S.W.2d 285, also stated, “[I]f a petitioner discovers some ground for relief — after a judgment is affirmed, he may present that ground in a clemency hearing.”

For the reasons stated above, I agree with the majority court’s affirmance of the trial court’s decision holding Larimore’s Rule 37 motion should be dismissed, but disagree with its granting leave to petition for writ of error coram nobis.

Newbern, J., joins this opinion.

       Larimore’s first conviction was reversed and remanded because the verdict was tainted by the introduction of a mass of materials into the jury room which should not have been there. Larimore v. State, 309 Ark. 414, 833 S.W.2d 358 (1992).

       Larimore further cites Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975), but there this court denied Troglin’s petition for a writ of error coram nobis because a number of reasons, including Troglin had failed to exercise due diligence in making application for relief. Since Troglin, this court has repeatedly adhered to the rule that a petitioner, in applying for such extraordinary relief must do so before this court affirms petitioner’s case on appeal.


author: Per Curiam.

text:
    Derrick MITCHELL v. STATE of Arkansas
    CR 96-1492
    938 S.W.2d 814
    Supreme Court of Arkansas
    Opinion delivered February 10, 1997

      John W. Rife, Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Per Curiam.

In 1995, Derrick Mitchell was found guilty by a jury of murder in the first degree, battery in the first degree, and aggravated assault. An aggregate sentence of sixty-six years’ imprisonment was imposed. We affirmed. Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996).

Mr. Mitchell filed in the trial court a pro se petition pursuant to Criminal Procedure Rule 37, challenging the judgments. The trial court denied the petition, and the record has been lodged here on appeal. Appellant Mitchell’s court-appointed counsel now seeks to be relieved as counsel on the ground that the appeal is wholly without merit. He further seeks an extension of time if the motion to be relieved is denied.

The motion to be relieved is denied because it does not comport with proper procedure. Rule 4 — 3(j) (1) provides in pertinent part:

A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract. The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal.

Ark. Sup. Ct. R. 4-3(j)(2).

The motion filed by counsel has attached to it a copy of the petition filed in the trial court and a “Memorandum of Law.” No brief containing an abstract and argument in accordance with Rule 4-3 (j) (1) was filed with the motion.

Counsel in the motion to be relieved and the State in its response to the motion both urge that the appeal should be dismissed because the Rule 37 petition was not timely filed. There is, however, no abstract before us from which it can be determined if the petition was timely filed. The procedure set out in Rule 4-3(j) (1) is intended to avoid precisely the situation which arises from counsel’s motion. Without an adequate brief which contains an abstract of the record, we cannot make a reasoned decision on whether counsel is entitled to be relieved on the ground that the appeal is without merit. See Anders v. California, 386 U.S. 738 (1967); Campbell v. State, 288 Ark. 309, 705 S.W.2d 422 (1986).

The motion for extension of time is granted, and counsel is directed to file a brief which complies with Rule 4-30(1). When the brief is filed, the motion and brief will be forwarded by the Clerk to the appellant so that he may raise within thirty days any points he chooses in accordance with Ark. Sup. Ct. R. 4-30(2).

Motion to be relieved denied; motion for extension of time granted.


author: Per Curiam. Robert L. Brown, Justice.

text:
    STATE of Arkansas v. PULASKI COUNTY CIRCUIT COURT
    96-1286
    938 S.W.2d 815
    Supreme Court of Arkansas
    Opinion delivered February 10, 1997
    [Petition for rehearing denied March 17, 1997.]

      Winston Bryant, Att’y Gen., by; Kelly K. Hill, Deputy Att’y Gen., for appellant.

      James, Yeatman & Carter, PLC, by: Paul J. James and Steve W. Haralson, for appellee.
   Per Curiam.

The State seeks rehearing, stating that it agrees with this court that the circuit court could exercise superintending control over the municipal court’s setting bail in this cause. However, it suggests that this court did not properly address whether the circuit court possessed such authority, absent any filing having been made to initiate the circuit court’s jurisdiction to reduce the bail, established earlier by the municipal court. In reviewing the limited record given to us in this case, it is readily apparent that the State had never been served with any petition or motion notifying it that a bond hearing would be held in this matter in circuit court. For this reason, the deputy prosecutor objected to the trial court’s jurisdiction and its proceeding below, as is shown by the following colloquy:

State: Your Honor, is this a bond hearing?
Court: Yes. Yes.
State: At this point, I’d have to respectfully object to the court considering bond on the basis of jurisdiction. It’s my understanding that there’s not been anything filed in this court. He’s been before a judge previously and had an opportunity with a lawyer to address his bond. It’s currently set at twenty-five thousand dollars. Now, if this was filed in this court, I —
Court: Well, the only reason the court’s taking an interest in this is because of the age of this young man, sixteen years old, sitting up in the jail while the file is on somebody’s desk.
State: I understand the court’s concern, Your Honor. But I don’t think it is properly before this court at this time.
Court: Well, a circuit judge can set a bond on it, as you know . . . because right now it’s simply in limbo. (Emphasis added.)

As is reflected in the foregoing colloquy, the State never questioned whether the circuit court had superintending authority over the municipal court, but instead argued the bond issue was not properly before the circuit court since nothing had been filed with the court. Nonetheless, the respondent’s argument dealt only with whether the circuit court had authority to decrease the amount of bond once the bond had been set by the municipal court.

In our opinion handed down on December 16, 1996, we thoroughly agreed with respondent’s counsel, and held the circuit judge had superintending power over a municipal court’s bail bond decisions. We failed, however, to answer the issue concerning whether the circuit court could exercise such authority without first filing a motion, petition, or other pleading. We do so now, and conclude that, if a defendant seeks relief from a bond established by an inferior court, the defendant must first commence his or her action by fifing a pleading with the clerk of the superintending court. See Rules 3 and 4 of the Arkansas Rifles of Civil Procedure. To decide otherwise would foster ex parte communications with judges and encourage forum shopping.

In conclusion, we reaffirm our decision herein that a circuit court has superintending power over a municipal court’s setting of bail bonds, but in addition, we must hold the circuit court erred by failing to require the defendant to commence his bond-reduction request by fifing an appropriate pleading with the court’s clerk. Accordingly, we grant the State’s petition for writ of prohibition because the bond-reduction issue herein was not properly filed with the circuit court. Nevertheless, the parties are left with the direction that the circuit court below does have superintending power to proceed in this matter upon the parties’ correctly initiating that court’s jurisdiction by filing an appropriate pleading.

Corbin, Brown, and Thornton, JJ., would deny.

Robert L. Brown, Justice.

This case grew out of the arrest of David Barnard Batts, age 16, for the unlawful discharge of a firearm from a vehicle. On July 17, 1996, Sherwood Municipal Court fixed bond at $25,000 and bound Batts’s case over to Pulaski County Circuit Court. The case languished in this “bound over” status for two months. No criminal charges were filed by the prosecuting áttorney in circuit court, and Batts remained in the county jail.

On September 16, 1996, Pulaski County Circuit Judge Marion Humphrey was contacted by Batts’s parents who complained their son should be in school and not in jail. Judge Humphrey notified the prosecuting attorney’s office that he would hold a hearing on the status of the case for the following day. In our initial opinion, we stated what occurred at that hearing:

The deputy prosecutor then objected to the bond hearing because charges had not been filed in circuit court. The court admonished the prosecutor to “move these [cases] along,” and the court reduced the bail to $7,500.

State v. Pulaski County Circuit Court, 326 Ark. 886, 889, 934 S.W.2d 915, 916 (1996). In our initial opinion, we denied the State’s petition for prohibition and certiorari on the basis that the circuit court had superintending control over municipal courts and could reduce the amount of bail, even though criminal charges had yet to be filed.

The State now has petitioned for rehearing and contests our initial decision for the reason that a circuit court’s superintending control over municipal courts does not arise until charges are filed in circuit court. The State’s essential theory is that the case of Whitehead v. State, 316 Ark. 563, 873 S.W.2d 800 (1994), thwarts the circuit court’s authority to reduce bail in this case, and that case was not sufficiently distinguished in our initial opinion.

The per curiam opinion handed down today grants the State’s petition for rehearing and further grants the writ of prohibition, which has the effect of precluding the Pulaski County Circuit Court from acting in this case until a petition to reduce bail is filed. Today’s per curiam opinion, however, appears to agree with the initial opinion of this court that the circuit court had superintending authority to reduce bail, even though criminal charges had not been filed. What renders the circuit court wholly without jurisdiction, according to the new opinion, is the failure of Batts or his guardian to file a written petition to reduce the bail. The express menace sought to be corrected is forum-shopping and ex parte communications with circuit judges.

Because the opinion today grants rehearing on a point mentioned only in passing in the State’s petition for rehearing — failure of Batts to file a petition to reduce bail — I am fearful that Pulaski County Circuit Court has not had adequate opportunity to address this point. The State’s cornerstone argument has always been that it is the failure to file charges that renders the circuit court unable to act. Moreover, I do not read the position of the State to be that the mere filing of a petition to reduce bail, without the fifing of criminal charges, confers jurisdiction in the circuit court.

Finally, on the merits, the precise statute on bail applications does appear to permit oral applications in circuit court when the circuit court is not convened:

(a) If the defendant is committed to jail, and the application for bail is made to a magistrate, or judge of the circuit court during vacation, it must be by written petition, signed by the defendant or his counsel, briefly stating the offense for which he is committed and naming the persons offered as surety.
(b) In all other cases, the application may be made orally to the court or magistrate.

Ark. Code Ann. § 16-84-113 (Supp. 1995).

Again, the core issue in this case was whether the circuit court obtained jurisdiction to reduce bail when criminal charges had not been filed. We held that the circuit court had the power to do so in this case. Should forum-shopping become an issue in a later case, we can address it. I would deny rehearing.

Corbin and Thornton, JJ., join.

       We in no way mean to limit other remedies, if appropriate, such as filing a petition for writ of habeas corpus. In any event, the defendant must first file the petition with the clerk of the proper court. Because this case involved only a bond-reduction issue, defendant was required first to file his motion or petition with the circuit clerk’s office, which then would have assigned the matter to the proper circuit court division.