text:
    M. Munir ZUFARI, M.D., P.A. v. ARCHITECTURE PLUS, a Partnership, and Paul Hill, Michael G. Johnson, and Anthony Leraris
    95-935
    914 S.W.2d 756
    Supreme Court of Arkansas
    Opinion delivered February 12, 1996
    [Petition for Rehearing denied March 18, 1996.]

      Bethell, Callaway, Robertson, Beasley & Cowan, by: Kenneth W. Cowan, for appellant.

      Jones, Jackson Moll, by: Mark Moll, for appellees Architecture Plus, Michael G. Johnson, and Anthony Leraris.

      Warner, Smith & Harris, PLC, by: James M. Dunn, for appellee Paul Hill.

       Jesson, C.J., not participating.

   Robert L. Brown, Justice.

Appellant Dr. M. Munir Zufari appeals a judgment barring his claim for breach of contract on limitations grounds. Zufari had sued appellee Architecture Plus and those persons who were partners during the time of the events in question — appellees Paul Hill, Michael G. Johnson, and Anthony Leraris. Zufari contends on appeal that the complaint was timely filed because the cause of action did not accrue until the project was substantially completed and, further, that the trial court erred in concluding that his request for arbitration was also barred by time. We disagree, and we affirm the judgment.

On August 3, 1993, Zufari filed his • complaint against Architecture Plus and the other appellees. He alleged that on or about September 1, 1987, he and Architecture Plus entered into a contract where Architecture Plus would design a medical clinic which would contain an ambulatory surgical center. Under the terms of the agreement, Architecture Plus was to design the facility according to Health Department regulations, prepare construction documents, and assist in the administration of the construction contract. The complaint asserted that after substantial completion of the facility, the Health Department refused to certify the project due to design defects. As a result, Zufari was forced to incur the additional expense of hiring another architectural firm to modify the design. The complaint further alleged that Zufari relied on Architecture Plus to make certain that the building complied with Health Department requirements. The complaint also contains a request for the trial court to order arbitration, as provided in the contract. In an amended complaint, Zufari sought damages in the amount of $114,742.38. Architecture Plus filed a counterclaim and alleged that Zufari owed it a balance of $9,874.95 for services rendered.

Architecture Plus and the appellee partners answered, raising the affirmative defense of statute of limitations, and moved to dismiss Zufari’s complaint on the same grounds. A hearing was held on the affirmative defense, and proof was presented. Paul Hill, who was previously a partner in Architecture Plus, testified that his firm was hired by Zufari to construct the medical clinic and that the first design was completed on November 23, 1987, and submitted to the Health Department for approval. In a return letter dated December 4, 1987, the Health Department informed Architecture Plus that in order to license the facility, the design would have to incorporate these changes:

1. Flip-flop O.R. [operating room] and vascular lab.
2. Provide a sterile barrier and a traffic route for surgery personnel to get from street clothes, to a gowning space, and into the surgery corridor.
3. Smooth washable ceiling and walls in the anesthetizing location and in the surgery corridor. Lay-in ceiling is not permitted in the O.R.
4. Provide for dumping a bed pan without traveling through other functional areas.
5. Tell us how and where you will incinerate excised tissue.
6. Label preop and postop space.
7. Make the O.R. 250 square feet in area.
8. Provide a smoke barrier.
When you get your plumbing approval, this office approves construction to begin. Note that this does not constitute city approval. To be licensed and certified as an ambulatory surgery center, you must satisfy our requirements.

Zufari was shown as having been sent a copy of the letter. The court permitted Hill to testify about the contents of the letter over hearsay objections by Zufari.

Hill testified that the absence of a sterile corridor is what prevented the facility from being licensed. He further testified that Zufari was aware of the Department’s rejection of the design in December 1987. Hill continued to communicate with the Health Department during the construction of the building. On December 22, 1987, Hill presented Zufari with a bill from Architecture Plus which showed that the design phase was 100% complete and that the construction documents and working drawings were 100% complete.

Hill also testified that on January 26, 1988, he submitted revised plans of the Zufari clinic to the Health Department in an effort to incorporate the required changes. These were the last plans that Hill prepared on the facility, although he made minor design changes later. Over Zufari’s objection, the trial court admitted a reply letter from Glenn Anderson, a construction engineer with the Division of Health Facility Services of the Health Department. In the letter dated February 4, 1988, Anderson wrote:

We did fail to point out that the type construction required does include steel door frames. Steel door frames with an integral steel stop across the top and down both sides are required.
I have noted on my sheet A2 of eight (8) that Hall-10 (the surgery corridor) is “off limits” to the public and that the gowning alcove is just north of door 21B with scrub sink just south of that door in the surgery corridor.
We must have Dr. Zufari’s written policy on how he will get proper incineration of all infectious, pathological and anatomical waste before we can recommend licensing of his facility. He must also give us a signed agreement with a hospital that will give him back-up service.

A notation at the bottom of this letter showed a copy going to Zufari.

On September 22, 1988, Hill wrote Zufari that the project was substantially completed. The medical clinic had opened for business on September 16, 1988. Hill testified that Zufari had expressed dissatisfaction with his work during a walk-through of the facility in December 1988. On February 15, 1989, Hill left Architecture Plus, and Hill’s work for Zufari ended.

Anthony Leraris, another partner with Architecture Plus, testified that Zufari’s contract was a standard form contract used by the firm and that it contained an arbitration provision. Leraris testified that he never received any request for arbitration from Zufari. On March 15, 1989, Leraris wrote the director of the Health Department, Dr. Joycelyn Elders, and complained that Glenn Anderson had approved the plans for the Zufari medical clinic by letter dated February 4, 1988, but that his successor, Tom Saunders, had later denied them. In the letter, Leraris blamed personnel turnover in the department for the denial of the license. Leraris testified that he did not become aware of any problems until after the medical clinic was substantially complete. As Leraris understood the problem, the addition of steel doors to the substerile surgery corridor would have met the Health Department’s demands. Zufari never consented to the addition of the steel doors, according to Leraris, and Hill never revised the plans to include steel doors.

The Health Department responded in a letter to Zufari dated March 30, 1989, regarding license denial:

Our office has reviewed our position regarding license denial at your facility and wish to offer further comments. We feel that the only subject sufficient to limit acceptance is the need for a distinguished sub-sterile (surgery) corridor. The surgery corridor must be physically separated by walls or doors from adjacent physician office space. The physical barrier with appropriate signage allows the necessary limited access to the corridor and proper aseptic technique with regards to cross contamination.
Throughout correspondence in our files, there are references to the need for a sterile barrier before entering into the surgery corridor. Item #2 of our letter dated December 4, 1987 to Architecture Plus was the first reference.
Our letter to Architecture Plus dated February 4, 1988, reaffirms our position that the surgery corridor is to be “off limits” to the public. The “public” would be extended to be anyone not properly attired to enter the corridor. Due to the arrangement of the facility, the corridor can not be considered “off limits” properly without physical separation.

The trial court first refused to bar Zufari’s complaint for limitations reasons. A motion for reconsideration was filed by the appellees, and after a second hearing, the trial court ruled that the statute of limitations did bar the cause of action for breach of contract. In its order, the court found that Zufari’s cause of action against Architecture Plus accrued on December 4, 1987, when the Health Department initially rejected the design.

Zufari’s first four points on appeal all relate to his claim that the trial court erred in dismissing his complaint on the basis of limitations. He argues that his complaint was timely filed under the statute of limitations codified at Ark. Code Ann. §16-56-112 (1987). He further argues that notwithstanding the clear application of section 16-56-112, his complaint is also timely under Ark. Code. Ann. § 16-56-111 (b) (Supp. 1995), because under the contract Architecture Plus was to guard against defects until issuance of the certificate for final payment or 60 days after substantial completion. Architecture Plus counters that § 16-56-111(b) applies exclusively, and that under that statute, the cause of action accrued on December 4, 1987, when the Health Department rejected the plans.

The first statute of limitations in question, § 16-56-111(b), reads:

(b) Actions on writings under seal shall be commenced within five (5) years after the cause of action shall accrue, and not afterward.

Ark. Code Ann. § 16-56-111 (b) (Supp. 1995). Section 16-56-112 reads in part:

(a) No action in contract, whether oral or written, sealed or unsealed, to recover damages caused by any deficiency in the design, planning, supervision, or observation of construction . . . shall be brought against any person performing or furnishing the design, planning, supervision, or observation of construction or the construction or repair of the improvement more than five (5) years after substantial completion of the improvement.
(f) Nothing in this section shall be construed as extending the period prescribed by the laws of this state for the bringing of any cause of action, ....

Ark. Code Ann. § 16-56-112 (1987).

This court had occasion to interpret § 16-56-112, as it related to other statutes of limitation, in East Poinsett County School Dist. No. 14 v. Union Standard Ins. Co., 304 Ark. 32, 800 S.W.2d 415 (1990). There, the issue was a breach of an oral contract to repair a gymnasium roof and the applicable statute of limitations. The plaintiff filed the complaint beyond the time of the 3-year statute of limitations for breach of an oral contract and sought to extend the limitations period by means of § 16-56-112. We stated:

Before the enactment of § 16-56-112, a third party could sue architects and people in the construction and building field at any time after completion of work, so long as the third party brought suit within the applicable statute of limitations period commencing from when an injury or breach occurred. In recognition of this fact, states, including Arkansas, adopted statutes to limit the time within which actions could be brought against persons in the construction and building field. Section 16-56-112, by its own terms, is not meant to extend existing statutes of limitations.

304 Ark. at 33-34, 800 S.W.2d at 417. Hence, we held that the three-year limitations period for oral contracts applied, as did § 16-56-112. We added:

But, in bringing such a suit, the injured party must still bring the action within the statute of limitations for that type of cause of action.

304 Ark. at 34, 800 S.W.2d at 417.

Section 16-56-111(b) is the applicable statute of limitations for written contract actions. See Ernest F. Loewer, Jr. Farms, Inc. v. National Bank of Arkansas, 316 Ark. 54, 870 S.W.2d 726 (1994). A written contract is what is involved in this case. In light of East Poinsett County School Dist., the existence of § 16-56-112 does not extend the statute of limitations under § 16-56-111(b) or otherwise affect its applicability. We hold that § 16-56-111 (b) is the applicable statute of limitations in the case before us.

The issue then becomes a factual one. Did Zufari’s cause of action against Architecture Plus accrue before August 3, 1988, which was five years before his complaint was filed? We hold that it did. In routine contract actions, the statute of limitations begins to run upon the occurrence of the last element essential to the cause of action. Hunter v. Connelly, 247 Ark. 486, 446 S.W.2d 654 (1969). The test for determining when a breach of contract action accrues is the point when the plaintiff could have first maintained the action to a successful conclusion. Dupree v. Twin City Bank, 300 Ark. 188, 777 S.W.2d 856 (1989). We stated in Dupree:

As we stated on the question of statute of limitations for contracts, a cause of action “accrues the moment the right to commence an action comes into existence.” Hunter v. Connelly, 247 Ark. 486, 446 S.W.2d 654 (1969). And if the right of action depends upon some contingency or condition precedent, the cause of action accrues and the statute of limitations begins to run when the contingency occurs or the condition precedent is complied with.

300 Ark. at 191, 777 S.W.2d at 858.

Using these principles, the ultimate question to be answered in this case is whether the submission of the defective design on November 27, 1987, and its rejection by the Health Department on December 4, 1987, constituted a material breach. Section 2.3.2 of the contract states:

2.3.2 The Architect shall assist the owner in connection with the Owner’s responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the project.

This section requires the architect to assist in getting government approval of the project. Without approved plans, the facility would not be licensed, and without licensure, the ambulatory surgery center could not operate. See Ark. Code Ann. § 20-9-213 (Repl. 1991). Acquiring government approval was, therefore, a material element of the contract, and that approval was denied as of December 4, 1987, when the design work was 100% complete. When performance of a duty under a contract is contemplated, any non-performance of that duty is a breach. Restatement (Second) of Contracts § 235 (2) (1981).

We conclude that the trial court correctly found that the relevant date for accrual of the cause of action for breach was the date the plans were rejected by the Health Department — December 4, 1987. On that date, the cause of action was complete, and Zufari was entitled to sue for breach. He chose not to do so but, rather, chose to allow Architecture Plus to attempt to rectify the problem. The fact that Architecture Plus attempted to mitigate and correct the breach, however, does not alter the fact that a breach had occurred. Zufari did not file suit until August 3, 1993, and the applicable statute of limitations under § 16-56-111(b) had expired well before that date. Thus, the action was time-barred.

Zufari did object to the introduction of the Health Department’s December 4, 1987 letter at the hearing on hearsay grounds, but the trial court admitted it under the business record exception to the hearsay rule. Architecture Plus concedes that this was error, but argues that the error was harmless. We agree with Architecture Plus that any error was rendered harmless, primarily because admission of the letter was cumulative to other evidence admitted without objection. See Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996); Williams v. Southwestern Bell Tel Co., 319 Ark. 626, 893 S.W.2d 770 (1995). For example, Hill testified that Zufari knew about the Health Department’s rejection of the design work in 1987.

For his final point, Zufari urges that the trial court erred in concluding that Zufari’s claim for arbitration was also time-barred. Zufari made a request for arbitration in his complaint dated August 3, 1993. Section 7.2 of the contract between Zufari and Architecture Plus provides:

In no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such a claim, dispute or other matter in question would be barred by the applicable statutes of limitations.

Under our analysis, as set forth above, the request for the trial court to order arbitration was also late.

Affirmed.

Jesson, C.J., not participating.


source: Caselaw Access Project

author:
Andree Layton Roaf, Justice.
      Tom Glaze, Justice,

license: Public Domain

text:
    Roger D. FLEMENS and Nancy Flemens v. Glen D. HARRIS
    94-245
    915 S.W.2d 685
    Supreme Court of Arkansas
    Opinion delivered February 12, 1996
    [Petition for Rehearing denied March 18, 1996.]

      Wright, Chaney, Berry & Daniel, P,A., by: Don P. Chaney, for appellants.

      Wood, Smith, Schnipper & Clay, by: Lynn Williams and Philip M. Clay, for appellee.

      Glaze, J., would grant.

   Andree Layton Roaf, Justice.

This is the second appeal of this case involving a claim of negligence against an insurance agent; the first appeal was dismissed without prejudice pursuant to Ark. R. Civ. P. 54(b). Flemens v. Harris, 319 Ark. 659, 893 S.W.2d 783 (1995). Appellants Roger and Nancy Flemens appeal from an order granting summary judgment in favor of appellee Glen D. Harris on the basis that the Flemenses’ action was barred by the running of the statute of limitations. We affirm.

Facts

Appellee Glen Harris passed the state examination for insurance agents in June 1988 and opened a Shelter Life Insurance Company office in Dierks, Arkansas. Roger Flemens, a self-employed grocery store and gas station operator, submitted a disability insurance application through appellee’s office on August 8, 1988, and was issued a policy by Shelter Life Insurance Company (Shelter). Roger Flemens’ wife, appellant Nancy Flemens, was the intended third party beneficiary of the disability insurance policy.

On December 15, 1988, Roger Flemens sustained injuries as a result of a motor vehicle accident. Mr. Flemens made a claim for disability insurance benefits from Shelter and received one payment for the period December 16, 1988, through Decernber 29, 1988. The payment was made on February 7, 1989. On March 21, 1989, Flemens was notified by Shelter that there was “a problem with this matter.” Shelter Life Insurance stated that there had been a misrepresentation on the application regarding Flemens’ income — the income shown on his tax returns was significantly below that which he claimed on the application form. Subsequently, Roger Flemens’ disability benefits were terminated.

Roger and Nancy Flemens filed a complaint against Shelter and Glen Harris on December 13, 1991. The complaint alleged Harris was negligent in handling Roger Flemens’ application for disability insurance. The complaint further alleged that the negligence on the part of Harris was imputable to Shelter under the law of agency. In addition, the complaint alleged that Flemens substantially complied with the terms of the policy and, despite demand, Shelter failed to pay benefits due under the policy.

Appellee Harris moved for summary judgment asserting that the three-year statute of limitations barred the Flemenses’ action. The trial court found that the applicable statute of limitations for negligence of an insurance agent is three years and begins to run at the time the negligent act occurs, not when it is discovered. The trial court further concluded that the negligence, if any, committed by Harris occurred in August 1988 and the action against Harris was filed in December 1991. Accordingly, the trial court granted separate defendant Glen Harris’ motion for summary judgment. The record reflects that Shelter entered into a settlement agreement with the Flemenses and the action against Shelter was dismissed with prejudice.

Statute of limitations

On appeal, both parties agree that the applicable statute of limitations on actions for the negligence of an insurance agent is three years. The appellants, however, submit that the trial court erred in determining when the applicable three-year period began to run. The appellants assert that the statute of limitations did not begin to run until receipt of the March 21, 1989, letter from Shelter which terminated benefits because this letter represented their first loss, i.e. damage, which was necessary for their tort action to mature.

The appellants rely upon Midwest Mutual Ins. Co. v. Ark. Nat’l Co., 260 Ark. 352, 538 S.W.2d 574 (1976), where this Court concluded the running of the statute of limitations did not commence until an insured first learned it had no insurance coverage. The Arkansas National Company, an independent insurance agency, obtained an assigned risk liability insurance policy for Red Top Cab Company through Farm Bureau Mutual Insurance Company. Arkansas National and Red Top had a standing agreement to delete from coverage taxicabs undergoing repair and to reinstate the coverage upon request. Pursuant to that agreement, on August 11, 1970, Red Top requested one of Arkansas National’s agents to reinstate a vehicle under the coverage; however, the agent neglected to reinstate the vehicle.

The vehicle was involved in a collision nine days later, and on May 24, 1971, a suit was instituted against Red Top for injuries resulting from the collision. At that time, Red Top made demand on Farm Bureau to provide it with a defense and to pay any judgment that might be entered; however, Farm Bureau refused. After judgment was entered against it on September 11, 1973, Red Top assigned to Midwest Mutual Insurance Company its “chose in action” against Arkansas National for failure to reinstate insurance coverage, and, on March 29, 1974, Midwest filed suit against Arkansas National. Arkansas National answered and asserted the suit was barred by the three-year statute of limitations.

This Court concluded that Red Top’s cause of action accrued on or after May 24, 1971, when it was required to assume the cost of its own defense due to the negligence of Arkansas National. We concluded Arkansas National’s negligence in failing to reinstate the insurance coverage did not become tortious as to Red Top until at least some element of damage accrued to Red Top because of the negligence. However, the summary judgment in favor of Arkansas National was affirmed because this Court held that Red Top’s claim was not assignable.

In accordance with Midwest Mutual, the appellants submit that the statute of limitations in their case did not begin to run until they received the letter dated March 21, 1989, informing them benefits were terminated. The appellants assert that the statute of limitations begins to run when there is a complete and present cause of action. See Courtney v. First Nat’l Bank, 300 Ark. 498, 780 S.W.2d 536 (1989); Corning Bank v. Rice, Adm’r, 278 Ark. 295, 645 S.W.2d 675 (1983).

In response, the appellee cites a legal malpractice case, Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991), where we stated:

Since 1877, it has been our rule that the statute of limitations applicable to a malpractice action begins to run, in the absence of concealment of the wrong, when the negligence occurs, and not when it is discovered.

We held that the statute of limitations begins to run upon the occurrence of the last element essential to the cause of action. Id.; see also Wright v. Compton, Prewett, Thomas & Hickey, 315 Ark. 213, 866 S.W.2d 387 (1993). Accordingly, we concluded that the statute of limitations began to run at the time Alexander, an attorney, represented Chapman in the sale of a business. Although the Chapman case involved legal malpractice, this Court commented that under our traditional rule:

an abstractor, accountant, architect, attorney, escrow agent, financial advisor, insurance agent, medical doctor, stockbroker, or other such person will not be forced to defend some alleged act of malpractice which occurred many years ago.

(Emphasis supplied.) The appellee also relies upon Ford’s Inc. v. Russell Brown & Co., 299 Ark. 426, 773 S.W.2d 90 (1989), where we held that the three-year statute of limitations commenced from the date an accountant provided erroneous tax advice even though the assessment of tax deficiency occurred more than three years later. This Court specifically rejected the appellant’s contention that, until they were assessed a tax deficiency, they had not sustained an injury.

The appellants’ attempt to rely upon Midwest Mutual is understandable. However, the ultimate decision in Midwest Mutual was based upon the assignability of the action. Although this Court first concluded that the action was not barred by the statute of limitations, it was not necessary to do so in order to determine that the action could not be assigned. Consequently, although the discussion of the limitation issue in Midwest Mutual is extensive, the conclusion reached regarding this issue amounts to dictum. Of equal concern is the rationale employed by the Court in reaching the conclusion that the statute of limitation did not begin to run until the client of the insurance agency had suffered some actual loss or damage. The opinion does not distinguish the work of insurance agents from others who similarly render advice and services, whether they be considered “professional” or not. Nor is there any real discussion of our traditional rule for malpractice actions, as in Chapman, although one medical malpractice case is discussed.

In fact, two cases discussed and cited in the Midwest Mutual opinion as on point, and clearly relied upon by the court in reaching its conclusion regarding the limitation issue, involved damage to adjoining land resulting from the construction of a culvert, Chicago, R.I. & P. Ry. Co. v. Humphreys, 107 Ark. 330, 155 S.W. 127 (1916), and damage to property resulting from construction of a power plant, Brown v. Arkansas Central Power Co., 174 Ark. 177, 294 S.W. 709 (1927). See Midwest Mutual, supra, (quoting Faulkner v. Huie, 205 Ark. 332, 168 S.W.2d 834 (1943)). We thus conclude that the issue raised in the instant case is not controlled by Midwest Mutual, and should not be.

The appellee’s reliance upon Chapman, supra, presents a similar problem, because the comment in Chapman that its decision was applicable to insurance agents is also dictum; the running of the statute of limitations for attorney malpractice was the only issue before the court. However, in Chapman, the traditional rule that the statute of limitations applicable to malpractice actions begins to run, absent concealment of the wrong, when the negligence occurs, is thoroughly discussed, and the rationale behind it is clearly appropriate to an insurance agent. Certainly, damages resulting from the negligent acts of insurance agents, like those of accountants and attorneys, will seldom occur at the time the negligent act is committed and often will only surface upon the occurrence of some subsequent event. The injury or damage from a negligently prepared will does not arise until after the testator has died. The negligence of the insurance agent in Midwest Mutual and in the instant case did not result in damages until claims were presented and coverage denied.

The appellants seek to distinguish insurance agents from the other vocations listed in Chapman, by characterizing them as “generally not professional.” Even if that be the case, we are not prepared to suggest, as appellants argue, that because insurance agents are not considered “professional,” and do not render “professional” services, they should therefore be subject to, in effect, a longer statute of limitations than “true” professionals. Perhaps a better argument could be made for the opposite view. Also, the cases relied upon by the appellants in support of this distinction merely hold that an insurance agent does not have a duty to advise an insured with respect to different coverages. See Scott-Huff Ins. Agency v. Sandusky, 318 Ark. 613, 887 S.W.2d 516 (1994); Stokes v. Harrell, 289 Ark. 179, 711 S.W.2d 755 (1986). Insurance agents are not characterized as professional or non-professional, nor are their services compared with or distinguished from those of any other professions in reaching the holdings in Scott-Huff and Stokes. We are not persuaded that these decisions have any utility in the analysis of the limitations issue before us.

We hold that the statute of limitations for an insurance agent commences at the time the negligent act occurs, in keeping with our traditional rule in professional malpractice cases. However, in doing so, we recognize the harshness of this rule to the clients of not only insurance agents, but also of attorneys, accountants, and others who may avail themselves of this rule in defending against malpractice actions. In the instant case, the appellant participated in the preparation of his application for insurance and. knew that his income had been inaccurately stated. He further had two and one half years after suffering damage from the appellee’s negligence to bring legal action against him. The facts of Ford’s Inc., supra present a more dramatic example of how dire the consequences of our traditional rule can be to injured persons; there, the damages did not result until after the statute of limitations had run.

In Chapman, we discussed the “current trend” cases from other jurisdictions, which have adopted several approaches more favorable to the injured party — the “discovery rule,” the “date of injury rule,” and the “termination of employment rule.” We suggested then that any change to our long standing rule should come from the General Assembly, and we do so once more.

Retroactive application

The appellants submit that if this Court holds the Chapman case and its reference to insurance agents to be the controlling precedent, a retroactive application of new law will result. The Chapman opinion was issued on October 28, 1991, and appellants assert it is illogical and unfair for its application to result in the running of the three year limitation period in August, 1991, two months before Chapman was decided.

We have long held that our decisions are applied retrospectively — a decision of the court, when overruled, stands as though it had never been. See Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995). Appellants, however, mistakenly rely upon the decision in Wiles v. Wiles, 289 Ark. 340, 711 S.W.2d 789 (1986), as a deviation from this practice. In Wiles, we declined to permit retroactive application of a decision allowing for division of military retirement pay as marital property to a divorce and property settlement finalized nearly four years earlier. We determined that the previous holdings which did not allow such division were justifiably relied upon, and that the doctrine of res judicata would mandate against the reopening of cases already decided, a significant consideration that is not present in the instant case. Furthermore, as we said in Chapman, our limitation rules regarding malpractice actions have been applicable since 1877. See White v. Reagan, 32 Ark. 281 (1877). It is the traditional rule that we today hold to be controlling. The case of Ford’s Inc. v. Russell Brown & Co., supra, was decided in 1989 upon the same rule as Chapman, and it also conflicts with the analysis in Midwest Mutual. Indeed, the dissent in Ford’s Inc. made the same argument the appellants now make in the instant case.

We find there has been no change in the applicable rule and thus no “retroactive” application, because the decision in Midwest Mutual cannot be viewed as a “line of precedents” which has been relied upon. The trial court correctly applied the decisional law of the Court as it existed when it decided appellant’s case. Baker v. Milam, supra.

Affirmed.

Glaze and Corbin, JJ., dissent.

Tom Glaze, Justice,

dissenting. In Midwest Mutual Ins. Co. v. Ark. Nat’l Co., 260 Ark. 352, 538 S.W.2d 574 (1976), this court concluded that, where an insurance agent neglected to reinstate the insured’s vehicle coverage, the statute of limitations commenced when the insured first learned he had no coverage and not the date the agent failed to obtain it. Applying that rule to the situation now before our court, Roger and Nancy Flemens, the insureds, were first notified on March 21, 1989 that their insurance agent had failed in August 1988 to obtain the disability insurance coverage they had requested. Using the March 21, 1989 date and the three-year statute of limitations, the Flemens’s complaint, alleging negligence on their agent’s part, was timely filed on December 13, 1991.

The majority opinion concedes that the Flemenses, in contending their action against their insurance agent was filed timely, understandably relied on this court’s decision in Midwest, but the majority court then proceeds to offer reasons why the Midwest decision should not decide this case. The majority opinion falls short of overruling that decision, but it might as well have done so — at least as to the Midwest court’s extensive discussion of the three-year limitations statute and its application to an insurance agent’s negligent acts.

Primarily, the majority court suggests Midwest’s discussion of the three-year statute of limitations issue was purely dictum and for that reason, is not precedent here. I strongly disagree! In Midwest, Arkansas National had a standing agreement to insure Red Top’s taxicabs effective the same day Red Top requested coverage. Arkansas National and its agent neglected to follow Red Top’s request made on August 11, 1970, and as a consequence, one of Red Top’s taxicabs was uninsured when it collided with a motorcycle on August 20, 1970. Robert Bratton was driving the motorcycle which was owned by Archie Lee Lowe. On May 24, 1971, Bratton and Lowe sued Red Top for personal injuries and property damage. Red Top subsequently filed a third-party complaint against its insurance agent, Arkansas National, alleging it had negligently failed to obtain insurance per the parties’ agreement and Arkansas National’s negligence had forced Red Top to defend against Bratton’s and Lowe’s lawsuit.

The trial court in Midwest dismissed Arkansas National from the lawsuit, but the remaining claims were tried, resulting in a verdict against Red Top, with Bratton and Lowe obtaining a judgment in the sum of $6,850. Afterwards, Red Top assigned to Midwest Mutual Insurance company, its “chose in action” against Arkansas National, representing Red Top’s action against Arkansas National for failing to obtain the insurance coverage Red Top had requested. Based upon that assignment, Midwest filed suit against Arkansas National and its agent for the $6,850 paid Bratton and Lowe. Arkansas National conceded its agent had been negligent, but argued (1) the statute of limitations had run and (2) Red Top’s assignment to Midwest was invalid. The trial court granted Arkansas National’s motion for summary judgment, holding Red Top’s cause of action against Arkansas National was statutorily barred by the three-year limitations, since Red Top’s action accrued on August 11, 1970 — the date Arkansas National negligently failed to obtain Red Top’s vehicle insurance coverage.

On appeal of the trial court’s ruling, this court held the trial court was wrong in concluding Midwest Mutual’s cause of action was barred by the statute of limitations. In fact, the Midwest court stated that “the limitations question on appeal boiled down to when Red Top’s cause of action accrued against its insurance agent.” Most of the court’s opinion in Midwest sets out the cases and rationale it considered when deciding the trial court erred in ruling Red Top’s (and therefore its assignee’s, Midwest Mutual) cause of action against Arkansas National was procedurally barred by the limitations statute. Although it rejected the trial court’s statute of limitations ruling, the supreme court affirmed the lower court on the second defense Arkansas National had argued at trial — Red Top’s assignment to Midwest Mutual was invalid.

As is readily discernable from the above, the Midwest court had before it the trial court’s ruling that Midwest Mutual’s cause of action was barred by the three-year statute of limitations because its action commenced on the date its insurance agent negligently failed to obtain the requested insurance coverage. That legal issue was before this court on appeal, and the court addressed it, lest that trial court’s erroneous ruling on the issue be perceived as valid by that trial court and possibly other trial courts and parties. Because it was essential for the court in Midwest to decide the limitations issue, that court’s holding is binding authority and controls the case now before us.

The remaining remarks in the majority opinion are largely based on the erroneous assumption that the Midwest decision is dicta and not controlling here. For that reason alone, the majority court’s other points can be summarily discarded. However, I mention one matter briefly. The majority court conceives of no reason why professionals, such as attorneys, doctors and certified public accountants, should be considered differently from insurance agents when construing and applying the three-year statute of limitations. While much can be said and argued to counter the majority opinion on this point, it is sufficient to say that Midwest was decided in 1976, and the General Assembly could have changed that case law so as to treat insurance agents under the same limitations rationale or rule utilized in malpractice actions against “professionals.” For two decades, the General Assembly has been silent on this subject. Nor, until today’s decision, has this court refused to follow Midwest.

For the foregoing reasons, I respectfully disagree with the majority opinion, and would reverse this case.

Corbin, J., joins this dissent.


author: Andree Layton Roaf, Justice.

text:
    In the Matter of the ESTATE of Carlie O. BRUMLEY
    95-972
    914 S.W.2d 735
    Supreme Court of Arkansas
    Opinion delivered February 12, 1996

      Carol Gillespie, for appellant.

      Robert T. Gladwin, for appellee.
   Andree Layton Roaf, Justice.

This case involves the construction of the will of Carlie O. Brumley. The probate judge concluded that pursuant to the will of the decedent, the decedent’s estate passed to his surviving children in equal shares, share and share alike. In addition, the probate judge found that the decedent’s daughter, Norma Hudson, predeceased the decedent and her interest in the decedent’s estate did not vest. On appeal, appellant John A. Hudson submits that the probate judge (1) erred in finding that the interest of the decedent’s daughter, Norma Hudson, did not vest in her children upon her death and (2) erred in finding that the decedent’s estate passed only to his surviving children. We affirm.

Carlie O. Brumley died on October 3, 1994. His wife predeceased him, but he was survived by five children: Margaret Daniel, Wanetta Towler, Leland Brumley, Wayne Brumley, and James Brumley. In addition, one of the decedent’s children, Norma Hudson, predeceased him; she was survived by four children: John A. Hudson, Tommy D. Hudson, Sheila C. Conner, and Rebecca J. Drain.

On January 25, 1995, appellant John A. Hudson filed a petition to determine heirship. On March 17, 1995, the probate judge entered an order finding that the decedent left as his last will a written instrument dated January 31, 1989. The probate judge further ruled that the instrument should be admitted to probate as the last will and testament of Carlie O. Brumley, deceased.

In an order entered May 19, 1995, the probate judge concluded that “pursuant to the will of the decedent, the decedent’s estate passed to his surviving children, Margaret Daniel, Wanetta Towler, Leland Brumley, Wayne Brumley, and James Brumley, in equal shares, share and share alike.” In addition, the probate judge found that the decedent’s daughter, Norma Hudson, predeceased the decedent and her interest in the decedent’s estate did not vest. Appellant John Hudson appeals from that order.

Although this case involves the construction of a will, the appellant’s abstract does not include the will. The appellant’s abstract merely consists of statements such as, “[a]ppellant filed a petition to determine the heirs to the estate of the decedent,” “[a]ppellant filed a brief to support his position on the petition to determine the heirs of the decedent’s estate in order to aid the court,” and “[t]he Court entered an Order finding that the decedent’s deceased child’s interest in the estate did not vest because she predeceased the decedent and authorizing the sale of the real property at a private sale.” The appellee did not file a supplemental abstract.

It is fundamental that the record on appeal is confined to that which is abstracted. Mahan v. Hall, 320 Ark. 473, 897 S.W.2d 571 (1995). Appellant is required to abstract such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this Court for decision. Ark. Sup. Ct. R. 4-2(a)(6); Chrysler Credit Corp. v. Scanlon, 319 Ark. 758, 894 S.W.2d 885 (1995). Under Ark. Sup. Ct. Rule 4-2(b)(2) a judgment may be affirmed for noncompliance with Rule 4-2(a)(6). See Clardy v. Williams, 319 Ark. 275, 890 S.W.2d 276 (1995); Jones v. McCool, 318 Ark. 688, 886 S.W.2d 633 (1994). The failure to abstract a critical document precludes this Court from considering issues concerning it. Jones, supra.

In the argument sections of their briefs both the appellant and the appellee supply the provision of the will which is allegedly in question; however, the record on appeal is confined to the abstract and can not be contradicted or supplemented by statements made in the argument portions of the briefs. Wynn v. State, 316 Ark. 414, 871 S.W.2d 593 (1994). Further, the will which must be construed is never supplied in its entirety. It is a practical impossibility for seven justices to examine the single transcript filed with this Court, and we will not do so. J.B. Hunt Transport, Inc. v. Doss, 320 Ark. 660, 899 S.W.2d 464 (1995).

In Mills v. Holland, 307 Ark. 418, 820 S.W.2d 63 (1991), we affirmed a comparable case for failure to adequately abstract a will. We commented that the will was a written instrument which could have been abstracted in words. Id. We noted that, rather than copying the will verbatim in the abstract, “in the argument portion of their brief, appellants quote selected portions of the will and then discuss those parts of the will they consider to be controlling.” We concluded that such a discussion did not comply with Ark. Sup. Ct. R. 9(d), the predecessor of our current Rule 4-2. Id.

Affirmed.


author: Andree Layton Roaf, Justice. Tom Glaze, Justice,

text:
    STATE of Arkansas v. Michael PHILLIPPE
    95-529
    914 S.W.2d 752
    Supreme Court of Arkansas
    Opinion delivered February 12, 1996

      Murrey L. Grider, for appellant.

      Steve Inboden, for appellee.
   Andree Layton Roaf, Justice.

The appellant, State of Arkansas, Child Support Enforcement Unit (CSEU), appeals from the denial of a new trial in a child support action in which the state was ordered to refund all child support paid by appellee Michael Phillippe, following a blood test which excluded him as father of the minor child for whom the support had been paid. The appellant asserts that the trial court abused its discretion in failing to grant the new trial and that the trial court lacked jurisdiction to award a judgment against the state. We reverse the award of refund.

On February 21, 1992, appellant, as assignee of Glenda Phillippe, an Aid for Families with Dependent Children (AFDC) recipient, filed a petition for child support alleging appellee was the father of Michael A. Phillippe, Jr., born on October 10, 1986. Appellee first answered pro se, admitting he was the father of the child and that he and the mother of the child, Glenda Phillippe, were married at the time. Appellee filed an amended answer through an attorney on August 10, 1992, denying that he was the biological father of Michael A. Phillippe, Jr., and demanded that a blood test be ordered by the court. The court entered an order for blood testing on September 29, 1992. On December 3, 1992, the trial court entered an order for support which recited that the defendant did not appear, although he was served with summons and his attorney had been notified of “this proceeding.”

On February 25, 1993, the appellee, through a new attorney, moved to set aside the support order, alleging that his previous attorney had failed to advise him of the order for blood test and the notice of hearing. The support order was not set aside and appellant continued to collect support payments from appellee. On September 16, 1993, the court again ordered genetic testing to be performed on the parties. On January 13, 1994, appellee petitioned the court to enter a finding of no paternity and asked that all child support payments, past and future, be abated and all payments made to the Child Support Enforcement Unit from February 25, 1993, be refunded to appellee, because the mother and minor child had refused to submit to paternity testing. The appellant CSEU obtained a contempt citation against the mother on June 8, 1994 for refusing to obey the order for blood testing, the test was subsequently performed, and DNA test results concluded that appellee could not be the biological father óf the child. The appellant CSEU then moved to dismiss the child support case against the appellee. The trial court dismissed the action against the appellee with prejudice and also ordered the appellant to refund all child support payments made by the appellee since November 22, 1992, in the sum of $5,939.00, plus clerk’s cost totaling $48.00 and court costs totaling $65.77.

The appellant moved for a new trial pursuant to A.R.C.P. Rule 59 on the basis that the order for refund was “contrary to the preponderance of the evidence as well as contrary to the law.” This motion was denied.

On appeal, the appellant raises two arguments. Appellant first contends that it was abuse of discretion for the trial court to deny its motion for new trial. Appellant argues that appellee and his original attorney caused the support order to be entered by default. Appellant also submits that Ark. Code Ann. § 9-10-115(d) (Repl. 1993), found in the chapter dealing with paternity actions, only allows the court to relieve appellee of future obligations of support. Appellant further contends that it was merely a “conduit” for the support payments, and that Glenda Phillippe received all of the funds as support or AFDC payments.

We first note that the abstract and record do not contain any transcripts of the hearings conducted in this matter. However, from the pleadings, blood test results, and orders contained in the abstract, it appears that the following facts are not in dispute. A default order of child support was entered when neither appellee nor his attorney appeared at trial; the default order found appellee to be the father of his wife’s minor child; appellant collected child support from appellee pursuant to the order until a court ordered paternity test revealed that he was not the biological father of his wife’s child; the trial court entered an order dismissing the support action with prejudice and requiring appellant to refund to appellee the support money it collected.

Furthermore, after entry of the order, appellant moved for a new trial pursuant to Ark. R. Civ. P. 59(a)(6), which provides in material part:

A new trial may be granted to all or any of the parties on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party: . . . (6) the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law. . . .

Arkansas Rule of Civil Procedure 59(f) further provides that “A motion for a new trial shall not be necessary to preserve for appeal an error which could be the basis for granting a new trial.” We can thus review the proceedings as abstracted to determine if the decision of the trial court is clearly contrary to the preponderance of the evidence or is contrary to law.

Appellant argues that this court should follow the law as set forth in Ark. Code Ann. § 9-10-115(d), Modification of orders or judgments, which states in pertinent part:

(a) The chancery court may, at any time, enlarge diminish, or vacate any such order of judgment in the proceedings under this section, except in regard to the issue of paternity, as justice may require and on such notice to the defendant as the court may prescribe.
(c)(1) Upon request for modification of the issue of paternity, if the court determines that the original finding of paternity did not include results of scientific paternity testing, consent of the natural parents, or was not entered upon any party’s failure to comply with scientific paternity testing ordered by the court, the court shall direct the biological mother, the child, and the adjudicated father to submit to one (1) or more blood tests or other scientific examinations or tests as provided by § 9-10-108.
(d) If the court determines, based upon the results of scientific testing, that the adjudicated father is not the biological father, the court shall relieve the adjudicated father of any future obligation of support.

(Emphasis added.) Appellant further argues that it was contrary to the law for the trial court to order all past child support under the judgment to be refunded, because Ark. Code Ann. § 9-10-115(d) allows only for relief of future support, and because the support had been properly paid by the appellee pursuant to a valid court order, and properly received and distributed by the State. We hold that the statute is applicable because, although appellant initially filed an action which only sought child support, the Phillippes were married, and the issue of paternity was raised by the appellee as a defense to the support action.

When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Arkansas Dep’t of Human Serv. v. State, 312 Ark. 481, 850 S.W.2d 847 (1993). Here, the statute plainly directs the court to relieve the alleged father of only future obligation of support.

Although we have not yet done so, other jurisdictions have considered the identical issue. In State v. Wilmore, 624 So.2d 30 (La. App. 1993), the defendant did not answer the petition for child support or otherwise appear, and a default judgment was entered declaring him the biological father of the minor child. The Louisiana Court of Appeals affirmed the lower court’s decision not to order reimbursement of child support paid by the defendant after a blood test determined that the defendant could not be the father of the minor child. The court reasoned that when the child support payments were made, they were legally owed under a valid final judgment and therefore did not have to be reimbursed.

We conclude that the order of refund was contrary to the preponderance of the evidence and contrary to the law. The trial court was not authorized to relieve the appellee of past support by the applicable statutes, which specifically set out the course of action the trial court shall take when an adjudicated father is later determined not to be the biological father.

Because we reverse on the denial of the motion for new trial, it is not necessary that we decide the appellant’s remaining argument raising the defense of sovereign immunity.

We reverse only that portion of the order of dismissal which provides that appellant refund the support payments and costs to appellee.

Dudley, Glaze, and Corbin, JJ., dissent.

Tom Glaze, Justice,

dissenting. Glenda and Michael Phillippe were married but separated when Michael Jr. was born. The state later paid aid for dependent children (AFDC) payments on behalf of Michael Jr., and, on February 21, 1992, the state brought this action against Mr. Phillippe for reimbursement. Phillippe initially acknowledged Michael as his son, but later hired an attorney and denied paternity. He also demanded that the parties be administered a blood test. The chancellor ordered tests, but the parties failed to comply. On November 21, 1992, the chancellor declared Phillippe to be Michael Jr.’s father and ordered him to pay $53.00 per week in child support. While Phillippe and his attorney failed to appear at the November 21 hearing, the chancellor found Phillippe had been summoned and his attorney notified of the proceeding. The chancellor’s decisions announced on November 21 were included in his order entered on December 3, 1992.

On February 25, 1993, Phillippe and a new attorney filed a motion to set aside the chancellor’s December 3rd order, alleging his previous attorney had not notified him of the November 21 hearing which resulted in his having been determined Michael Jr.’s father. On September 16, 1993, nearly seven months after Phillippe’s motion to set aside the December 3rd order, the chancellor issued a new order directing blood tests and DNA typing be given the Phillippes and Michael Jr., and these test results excluded Phillippe as Michael Jr.’s father. This resulted in the chancellor entering a new order on February 11, 1995, finding Phillippe was not Michael Jr.’s father and directing the state to refund Phillippe the child support payments he had paid under the court’s December 3rd order. The February 1995 order was entered over three years after the chancellor’s original December 3, 1992 order which established Phillippe was the father.

The chancellor simply had no authority or power under our rules or statutory law to enter his February 1995 order. First, Phillippe filed no timely appeal from the chancellor’s December 3, 1992 order, nor timely motion for new trial under ARCP Rule 59. Second, he filed no ARCP 60(b) motion which complied with the mistake or miscarriage of justice required to modify or set aside an order. See Ingram v. Wirt, 314 Ark. 553, 864 S.W.2d 237 (1993) [’’miscarriage of justice” referred to in Rule 60(b) is a reference to the clerical errors or mistakes described in subsection (a)]. And when the chancellor failed to modify or vacate its December 3rd order within ninety days, he lost all power to act under Rule 60(b). Cigna Ins. Co. v. Brisson, 294 Ark. 504, 744 S.W.2d 716 (1988). Third, the chancellor here was left only with the general reservation of jurisdiction to modify his earlier December 3rd order pursuant to the special grounds set out in Rule 60(c), and none of these grounds were alleged by Phillippe or shown to exist. Finally, I mention Ark. Code Ann. § 9-10-115 (Repl. 1993) which provides that, under certain circumstances, a chancellor may vacate a paternity order at any time. Whether or not § 9-10-115 might be in conflict with Rule 60 in some situations is insignificant here because § 9-10-115(c)(1) is entirely consistent in establishing the chancellor had no authority to enter his February 1995 order. That provision provides as follows:

Upon request for modification of the issue of paternity, if the court determines that the original finding of paternity did not include results of scientific paternity testing, consent of the natural parents, or was not entered upon any party’s failure to comply with scientific paternity testing ordered by the court, the court shall direct the biological mother, the child, and the adjudicated father to submit to one (1) or more blood tests or other scientific examinations or tests as provided by § 9-10-108.

(Emphasis added.)

In the present case, the chancellor entered his December 3, 1992 order declaring Phillippe to be Michael’s father and did so only after having ordered genetic testing to be performed on the Phillippes and Michael Jr. Nowhere in the record is it reflected that any of the parties subjected themselves to the blood tests ordered by the chancellor prior to or by the time he held his hearing and entered his December 3rd order. Phillippe’s attempt to blame his attorney does not relieve Phillippe in failing to be tested as ordered or excuse him from making an appearance at the court’s November 11, 1992 hearing concerning the paternity and child support issues reduced to order on December 3rd. An attorney’s acts of omission, as well as his commissions, are to be regarded as the acts of the client he represents. Self v. Self 319 Ark. 632, 893 S.W.2d 775 (1995). In addition, this court has emphasized that it is the duty of a litigant to keep himself informed of the progress of his case. United S. Assurance Co. v. Beard, 320 Ark. 115, 894 S.W.2d 948 (1995).

In sum, the chancellor’s December 3, 1992 order was a final order which was never appealed, nor timely or properly requested to be set aside. The chancellor simply had no authority to wait over three years to vacate the order legitimating Michael Jr. and establishing child support for him. For the reasons above, the chancellor’s February 25, 1995 order should be dismissed.

Dudley and Corbin, JJ., join this dissent.

       We note that the legislature has clarified its intent that adjudications of paternity may be modified. See Act 1091 of 1995, codified in part at Ark. Code Ann. § 9-10-115(c)(2).


author: Per Curiam.

text:
    Larry DONIHOO v. STATE of Arkansas
    CR 95-1194
    915 S.W.2d 270
    Supreme Court of Arkansas
    Opinion delivered February 12, 1996

      Garnet E. Norwood, for appellant.
    No response.
   Per Curiam.

Appellant, Larry Donihoo, by his attorney, Garnet E. Norwood, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to an error on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam order dated February 5, 1979. In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

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


text:
    IN RE: Benjamin A. ROOK v. SHERIFF, Pulaski County, Arkansas
    CR 96-168
    914 S.W.2d 316
    Supreme Court of Arkansas
    Opinion delivered February 12, 1996

      Robert J. Brown, for petitioner.

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

Petitioner Benjamin A. Rook is charged with four counts of theft by deception. He made bail and later gave notice that his defense would be mental disease or defect. He was then incarcerated by the trial court, pending his mental health evaluation. He now petitions for issuance of a writ of habeas corpus for release from jail and moves for a motion for rule on the clerk to lodge his record in this court. An order for the mental health evaluation of the defendant filed January 9, 1996, is attached to the habeas corpus petition, but no other order of the trial court providing reasons for the incarceration is included in the record tendered to this court.

The trial court is directed to enter findings of fact and the reasons for the petitioner’s incarceration pending the mental health evaluation, within 10 days of the date of this per curiam order.


text:
    Dinzel NORMAN v. STATE of Arkansas
    CR 95-361
    916 S.W.2d 724
    Supreme Court of Arkansas
    Opinion delivered February 12, 1996

      George Stone, for appellant.
    No response.
   Per Curiam.

Appellant Dinzel Norman was found guilty by a jury of conspiracy to manufacture a controlled substance and manufacture of a controlled substance in September 1994. A timely notice of appeal was filed by his appointed attorney George Stone on September 27, 1994. On December 13, 1994, the circuit court extended the time for filing the record until March 27, 1995.

Mr. Stone did not tender the record to this court until March 30, 1995. Mr. Stone subsequently filed a motion for rule on clerk in which he contended that the circuit clerk was at fault in the late tender of the record. We denied the motion and directed that Stone file by May 24, 1995, a motion accepting full responsibility for the untimely tender of the record. Norman v. State, 320 Ark. 344, 896 S.W.2d 874 (1995). Stone did not file the motion.

On January 25, 1996, appellant filed the pro se motion and amended motion for rule on the clerk which are now before us. He argues that he has been denied effective assistance of counsel and his constitutional right to appeal by counsel’s conduct. We agree.

While an appellant may waive a direct appeal of a judgment of conviction by failing to inform his attorney of his desire to appeal within the time provided for filing a notice of appeal, it is clear that the appeal would have been perfected in this case had it not been for the failure of counsel to admit fault where it was evident from the motion for rule on the clerk that the attorney did not render effective assistance of counsel.

The attorney’s contention that the circuit clerk was somehow responsible for the failure to perfect the appeal was in error. We have consistently held that the appellant’s attorney is responsible for filing the record,- not the trial judge, the court reporter, or, as was claimed in this case, the circuit clerk. Lewis v. State, 295 Ark. 165, 747 S.W.2d 91 (1988). Here, the attorney compounded his error in not filing the record by not accepting fault for the untimely tender of the record. His inaction has left the appellant in the position of having an attorney-of-record since Stone has never been relieved from his responsibility in the case but having no representation.

The direct appeal of a conviction is a matter of right, and a state cannot penalize a criminal defendant by dismissing his first appeal as of right when his appointed counsel has failed to follow mandatory appellate rules. Evitts v. Lucey, 469 U.S. 387 (1985). To cut off a defendant’s right to appeal because of his attorney’s ineffectiveness would violate the sixth amendment right to effective assistance of counsel. Evitts v. Lucey, 469 U.S. 387; see also Pennsylvania v. Finley, 481 U.S. 551 (1987).

Appellant asks that an attorney other than George Stone be appointed to represent him on appeal on the ground that Stone has failed to perfect the appeal. The fact that Stone elected to abandon the appeal, however, is not in itself cause to relieve him of his responsibility to provide appellant with effective assistance of counsel in the appeal. Stone is the attorney most familiar with the case, and thus in the best position to prepare the appellant’s brief, and should be required to do so.

The pro se motion for rule on clerk is granted. The clerk is directed to lodge the record, and George Stone is directed to file the appellant’s brief within forty days of the date of this opinion.

George Stone shall be directed by separate Per Curiam order to appear before this court on February 26, 1996, at 9:00 a.m. and show cause why he should not be held in contempt for failure to file the appellant’s brief in accordance with our Per Curiam opinion of April 24, 1995.

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

Motion and amended motion granted in part and denied in part.


text:
    Dinzel NORMAN v. STATE of Arkansas
    CR 95-361
    916 S.W.2d 724
    Supreme Court of Arkansas
    Opinion delivered February 12, 1996

      Pro se.

   Per Curiam.

George Stone, attorney for appellant, is directed to appear before this court on February 26, 1996, at 9 a.m. and show cause why he should not be held in contempt of this court for failure to file the appellant’s brief in accordance with this court’s Per Curiam Order of April 24, 1995.

Order Issued.


text:
    Darren WOODRUFF v. STATE of Arkansas
    CR 96-90
    916 S.W.2d 104
    Supreme Court of Arkansas
    Opinion delivered February 12, 1996

      Maxie G. Kizer, for appellant.
    No response.
   Per Curiam.

Appellant, Darren Woodruff, by his attorney, Maxie G. Kizer, has filed a motion for rule on the clerk. The Clerk refused to docket the record concerning Mr. Wood-ruff s conviction because it revealed that the notice of appeal was late. We treat the motion for rule on the clerk as a motion for belated appeal in this circumstance.

Failure of counsel to perfect an appeal for a defendant who wishes to appeal constitutes ineffective assistance of counsel, and good cause for granting a belated appeal pursuant to Ark. R. Crim. P. 36.9(e).

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