author: W.h. "Dub"Arnold, Chief Justice.

text:
    James HUTTS v. STATE of Arkansas
    CR 00-708
    28 S.W.3d 265
    Supreme Court of Arkansas
    Opinion delivered October 12, 2000

      Tatum, Tatum & Riedel, by: John C. Riedel, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   W.h. "Dub"Arnold, Chief Justice.

Appellant James W. Hutts was charged with capital murder and aggravated robbery, along with four accomplices, for the January 5, 1999, death of Ruben Moore. The appellant was tried individually. A jury found appellant guilty of capital murder and aggravated robbery. Appellant was sentenced to life imprisonment without parole and twenty-five years, respectively. From that verdict, this appeal is now taken.

Appellant asserts the following on appeal:

1) There is insufficient evidence to sustain a guilty verdict on the charge of capital murder in that:
A) There was not sufficient corroboration of the accomplice testimony offered at trial to sustain a conviction;
B) If there was sufficient corroboration of the accomplice testimony, there was still insufficient evidence to support the conviction.

We affirm.

I. Sufficiency of the Evidence

Appellant first challenges the sufficiency of the evidence on the basis that the State did not sufficiently corroborate the testimony of Foster Riley, an accomplice to the robbery and murder. The State contends that this Court cannot reach the merits of this claim, however, because appellant failed to challenge the sufficiency of the accomplice-corroboration .evidence in his motion for directed verdict at trial. We agree.

The requirement that a defendant make a specific directed-verdict motion extends to any challenge to the sufficiency of the evidence corroborating an accomplice’s testimony, and the failure to challenge the sufficiency of accomplice-corroboration evidence in a directed-verdict motion at trial precludes appellate review on that ground.-See, e.g., Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994). At the close of the State’s case-in-chief, as well as at the close of all of the evidence, appellant’s counsel moved for a directed verdict on Mr. Hutts’s behalf. Appellant’s counsel stated, “[t]hey have failed to demonstrate that my client, James Hutts, has aided or abetted in any significant way the murder of Ruben Moore.” The language used by appellant’s attorney at trial is virtually identical to the language used by defense counsel in the Jones case, supra, wherein we held that the failure of defense counsel to include accomplice testimony as a ground for a directed verdict rendered the motion insufficient to preserve specific arguments for appellate review. We held in Jones that a “bright line” has been drawn and that directed-verdict motions must state specific grounds. Id. at 712, 889 S.W.2d at 709-10. As in Jones, because counsel for appellant did not specifically challenge the State’s evidence corroborating Riley’s testimony in his directed-verdict motion, his argument is barred.

Appellant further asserts that regardless of whether or not the accomplice-corroboration testimony was sufficient, there was still insufficient evidence to support the conviction. We disagree and hold that the evidence presented at trial was sufficient to sustain appellant’s conviction.

We have held that the test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another. Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999); Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). In a challenge to the sufficiency of the evidence, the appellate court reviews the evidence in the light most favorable to the State and sustains a judgment of conviction if there is substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990).

The evidence presented at trial established that on January 4, 1999, pursuant to conversations which occurred over the previous two weeks, appellant drove three accomplices — Marcus Ray, Foster Riley, and Phillip Jones — to the victim’s residence with the purpose of robbing him. They had planned to take baseball bats with them to “paralyze” the victim so that they could successfully rob him; however, they decided that simply paralyzing the victim would leave him able to identify them. Therefore, they determined that shooting him would be best. The men, armed with a .22-caliber handgun, had planned for Riley to lure Mr. Moore away from his house so that Ray could shoot him. However, the plan was aborted that evening when the victim refused to leave his residence.

The following evening, the four men again attempted to carryout their plan, accompanied this time by Jermaine Wimbush. When they arrived at the victim’s residence, appellant parked the car approximately fifty feet from the house, and Riley, Jones, and Wimbush got out of the car with the gun and some baseball bats to carry out the robbery. At that time, Ray told the three men that he and appellant were “tired of coming back empty-handed.” Riley, Jones, and Wimbush then approached the victim’s residence, and Wimbush lured the victim away from his house. Jones, who had the gun, could not shoot the victim, however, because Wimbush was in the way. The three men then returned to the car.

At the car, appellant and the four accomplices decided to return to the house to “finish” the job by shooting the victim and stealing his money and alcohol. Riley, Jones, and Wimbush then left the car a second time and approached the victim’s house. Riley stopped before reaching Mr. Moore’s residence to “use the bathroom,” and Jones and Wimbush continued on to Moore’s house. Immediately thereafter, either Jones or Wimbush knocked on the side of the victim’s trailer home, the door opened, and a gunshot was fired. The three men then returned to the car and left with appellant driving. While in the car, Jones returned the gun to Ray, who was sitting in the front passenger’s seat next to appellant. Appellant and Ray asked the other three what they had gotten from Mr. Moore, and Jones responded by saying, “we got nothing.” The men had actually stolen a total of $6.35 from Mr. Moore.

When the police arrived at the victim’s residence, they discovered his body lying outside the front door of the house with the pants pockets turned inside out. The cause of death was determined by the State medical examiner to be homicide. More specifically, the victim’s death occurred from a close-range gunshot wound to the neck from the .22-caliber handgun, which was later found in Ray’s house.

During the investigation, appellant gave a statement to police in which he admitted to driving the other four accomplices to the victim’s residence on the night of the murder in order to rob Mr. Moore. Although he denied knowing that his accomplices intended to kill the victim, appellant’s confession indicates that, at the very least, he was aware that he participated in a robbery. Appellant’s intent to participate in the robbery was confirmed at trial by Larry Mahan, Barbara Crowell, and Rebecca King, who each testified that they overheard appellant and Ray planning to commit the robbery.

In this case, the State first proved that a felony capital murder was committed. A person commits capital murder if, acting with one or more other persons, he commits or attempts to commit robbery, and in the course of committing the robbery, he or his accomplice(s) causes the death of another person under circumstances manifesting an extreme indifference to the value of human life. See Ark. Code Ann. § 5-10-101 (a)(l)(Repl. 1987). A person commits aggravated robbery when, with the purpose of committing a theft, he inflicts death upon another person or when he employs physical force upon another while armed with a deadly weapon. See Ark. Code Ann. § 5-12-103(a)(l)-(2) (Repl. 1987).

Aside from Foster Riley’s testimony at trial, the State independently established the commission of the crime through the medical examiner’s testimony that the cause of death was homicide. The State also proved that the murder was committed during the course of the commission of an aggravated robbery. Although he denied knowing that his accomplices intended to kill the victim, he knew that he was participating in a robbery, as three separate witnesses testified that they had overheard appellant planning the robbery. The testimony further revealed that the victim’s pockets were found turned inside out, consistent with the occurrence of a robbery. Clearly, sufficient evidence was presented to sustain a conviction for capital murder.

II. Rule 4-3 (h) Compliance.

The record has been reviewed for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3 (h), and no reversible errors were found.

Affirmed.

       As the death penalty had previously been waived by the State, the only possible sentence for appellant to receive upon having been convicted of capital murder was life imprisonment without parole. Therefore, the jury did not deliberate on the sentence for the capital murder conviction, as no deliberation was necessary.

       Appellant does not challenge his aggravated-robbery conviction or sentence on appeal.


source: Caselaw Access Project

author: W.h. ""Arnold, Chief Justice. Robert L. Brown, Justice.

license: Public Domain

text:
    Teresa Lynn MINER v. STATE of Arkansas
    CR 00-564
    28 S.W.3d 280
    Supreme Court of Arkansas
    Opinion delivered October 12, 2000

      R. Paul Hughes III, Sebastian County Public Defenders Office, for appellant.

      Mark Pryor, Att’y Gen., by: Leslie Fisken, Ass’t Att’y Gen., for appellee.
   W.h. ""Arnold, Chief Justice.

Appellant, Teresa Lynn Miner, brings the instant appeal challenging the Sebastian County Circuit Court’s order revoking her probation and sentencing her to five years’ imprisonment in the Arkansas Department of Correction with an additional five years’ suspended sentence. Miner initially appealed the decision to the Arkansas Court of Appeals and argued that the trial court erred in granting the State’s petition because there was insufficient evidence that she had violated the terms and conditions of her suspended sentence. In an opinion dated April 26, 2000, the Court of Appeals affirmed the circuit court’s order. See Miner v State, 70 Ark. App. 142, 15 S.W.3d 356 (2000). Pursuant to Ark. R. Sup. Ct. l-2(e) and 2-4 (2000), we granted appellant’s petition for review. The State contends that Miner’s arguments are procedurally barred by Ark. R. Crim. P. 33.1. We agree, and we affirm the trial court’s order revoking Miner’s probation.

Background

On March 3, 1993, Miner pled guilty to felony overdraft and received a five-year suspended sentence with two years’ probation. Additionally, she was ordered to make restitution in the amount of $2,243.94 and to pay fines and costs of $639.75. Approximately two years later, on March 16, 1995, Miner again pled guilty to felony overdraft, received a five-year suspended sentence and two years’ probation, and was ordered to pay $2,638.58 in restitution and $1,147.75 in fines and costs. After Miner failed to make several payments, including monthly probation fees and restitution payments, and after she committed another offense of felony overdraft, the State petitioned to revoke her 1993 and 1995 suspended sentences. Following an August 11, 1999 hearing, the trial court found that Miner had violated the terms and conditions of her probation and granted the State’s petition to revoke. She was sentenced to five years’ imprisonment in the Arkansas Department of Correction with an additional five years’ suspended sentence.

Following the appellate court’s affirmance, we granted Miner’s petition for review. When we grant a petition to review a case decided by the Court of Appeals, we review it as if it was filed originally in this court. See Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997) (citing Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996)). We first consider whether Rule 33.1 applies in a revocation proceeding and procedurally bars Miner’s appeal.

Rule 33. i

Appellant’s first point on appeal queries whether Ark. R. Crim. P. 33.1 applies in the context of a revocation proceeding. The relevant portions of Rule 33.1 provide:

(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.
(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution’s evidence, then the motion must be renewed at the close of all of the evidence.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. . . .

(Emphasis added.)

Miner’s argument that Rule 33.1 does not apply to revocation proceedings amounts to a discussion of the ways that trials differ from revocation hearings. For example, defendants in a revocation proceeding are not entitled to the “full panoply of rights that attend a criminal prosecution.” Morrissey v. Brewer, 408 U.S. 471 (1972). Certain rules of evidence, including the hearsay rule, do not apply strictly to a revocation hearing as they would in a trial. Lockett v. State, 271 Ark. 860, 611 S.W.2d 500 (1981). Further, the burden of proof varies. In a criminal trial, the State must prove its case beyond a reasonable doubt, but the burden of proof in a revocation proceeding is “by a preponderance of the evidence.” Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). Finally, speedy-trial rules vary between the two proceedings. Dority v. State, 329 Ark. 631, 951 S.W.2d 559 (1997). In light of these distinctions and the language of Rule 33.1, Miner claims that the rule is limited on its face to “trials.” Miner urges us to construe the rule by giving the words their plain meanings and conclude that it cannot apply to revocation hearings. See Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993).

In response, the State argues that Miner is procedurally barred from challenging the sufficiency of the evidence because she failed to move for a directed verdict at either the close of the State’s case or at the close of all evidence as required by Rule 33.1. The State reasons that the rule is clearly applicable because revocation proceedings are “criminal cases” and the Arkansas Rules of Criminal Procedure “govern the proceedings in all criminal cases in the Supreme Court and in circuit courts of the State of Arkansas.” Ark. R. Crim. P. 1.2 (2000). Moreover, Ark. R. Crim. P. 1.7 (2000) proclaims that the Rules of Criminal Procedure “shall apply to all criminal proceedings commenced upon or after the effective date hereof, and all appeals and other post-conviction proceedings relating thereto.”

Further, the State explains that the rule should apply because a judge acts as fact-finder in a revocation hearing just as he would in a nonjury trial; therefore, the two proceedings are equivalent for purposes of Rule 33.1. Notably, in Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995), we considered this argument and reached a different conclusion. In fact, we determined that directed-verdict motions were superfluous when there is a trial without a jury. Strickland, 322 Ark. at 317, 909 S.W.2d at 320-21. We explained that the judge would only be directing his own verdict, and the entire purpose of a bench trial is to have the judge, rather than a jury, ascertain the sufficiency of the evidence to convict. Id. Of course, at the time of our decision in Strickland, the procedural rule did not require a defendant to move for dismissal in nonjury-trial cases. Given that fact, we reasoned that where a judge is sitting as the trier of fact and would be sufficiently aware of the evidence and the elements of the crime, no such motion would be necessary. Id., 322 Ark. at 318, 909 S.W.2d 321. In sum, we held that a defendant in a nonjury trial need not challenge sufficiency of evidence, via a directed-verdict motion, to preserve the issue for appeal. Id.

However, Rule 33.1 was amended in 1999 by per curiam opinion. In Re: Rule 33.1, Rules of Criminal Procedure, 337 Ark. Appx. 621 (1999). This recent amendment resolves the issue before us and compels us to agree with the State. The Reporter’s Note to the 1999 amendment indicates that subsection (a) applies to jury trials, subsection (b) applies to nonjury trials, and subsection (c) applies to both. The comment also states that in both jury and bench trials, the defendant is required to notify the trial court of the particular reasons why the State’s evidence is insufficient in order to preserve the issue for appellate review. Notably, this requirement as to bench trials marks a change from previous procedure and, more importantly, our intent to overrule the decision in Strickland.

In any event, other than citing the various distinctions between trials and revocation hearings, appellant has offered us no authority in support of her position that a revocation hearing cannot be equivalent to a nonjury trial in the context of Rule 33.1. We have long held that we do not consider arguments without convincing argument or citation to authority in support, where it is not apparent without further research that these arguments are well-taken. See Perryman v. Hackler, 323 Ark. 500, 508, 916 S.W.2d 105, 109 (1996) (citing Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995)). Moreover, in the absence of a specific objection below, the trial court had no opportunity to consider appellant’s sufficiency argument. It is equally well settled that we will not address arguments raised for the first time on appeal. Windsor v. State, 338 Ark. 649, 655, 1 S.W.3d 20 (1999); see also McGhee v. State, 330 Ark. 38, 42, 954 S.W.2d 206, 208 (1997).

In conclusion, we hold that Ark. R. Crim. P. 33.1, as amended, requires a defendant in a revocation proceeding to move for dismissal, stating the specific grounds therefor, in order to preserve the question of the sufficiency of the evidence to support the verdict or judgment. Given appellant’s failure to make a specific motion for dismissal, we affirm the trial court’s order revoking her probation. We also affirm the decision of the Court of Appeals.

Brown and Imber, JJ., dissent.

Robert L. Brown, Justice.

A revocation hearing is not a trial. Probation, suspension, and revocation are matters that clearly fall within the bailiwick of the General Assembly as part of sentencing and disposition of offenders. See Ark. Code Ann. §§ 5-4-301 through 5-4-323 (Repl. 1997, Supp. 1999). The General Assembly treats revocation hearings as separate and apart from trials and establishes the precise procedure for these proceedings. Ark. Code Ann. § 5-4-310 (Repl. 1997). For example, § 5-4-310 sets these procedures for revocation hearings:

• a preliminary hearing to determine if there is reasonable cause for violating suspension or probation shall be held unless waived by defendant;
• a hearing shall occur in circuit court as soon as possible after arrest and reasonably near place of violation or arrest;
• defendant shall be given full notice of the preliminary hearing and alleged violation;
• defendant may offer evidence on his or her behalf;
• if reasonable cause is found, then a hearing shall take place before original sentencing court;
• original sentencing court is sent summary of the preliminary hearing;
• revocation hearing shall occur within 60 days after arrest, after full notice to defendant; and
• defendant shall have right to controvert evidence and present evidence on his or her behalf.

No where in our Rules of Criminal Procedure do we set procedures for revocation hearings. Now for the first time, this court has included such hearings within the definition of “trials.”

Today’s opinion expands the requirements of Arkansas Criminal Procedure Rule 33.1 so that the term “trial” now includes revocation hearing. This means that because defense counsel did not move for a directed verdict at revocation hearing, he cannot raise insufficiency of the evidence as an issue on appeal. That is a harsh result, especially when the practicing bar has been legitimately unaware of the fact that a majority of this court believes revocation hearings to be trials. Certainly, our rules do not say that.

Revocation hearings and trials are simply two different proceedings. Black’s Law Dictionary defines “trial” as: “A formal judicial examination of evidence and determination of legal claims in an adversary proceeding.” Black’s Law Dictionary 1510 (7 ed. 1999). A revocation hearing on the other hand is a hearing held to determine whether a probation violator should have his or her probation revoked. In such hearings, a trial has already occurred and the potential violator found guilty. As this court has held, the alleged violator at the revocation hearing is not entitled “to the full range of criminal trial safeguards because the court is not dealing with a person who had yet to be convicted of anything.” Pyland v. State, 302 Ark. 444, 446, 790 S.W.2d 178, 179 (1990).

The majority clearly has confused apples and oranges. What follows is a sampling of just a few differences between trials and revocation hearings:

• Revocation hearings and trials involve different standards of proof. In a revocation hearing, the burden is on the state to prove by a preponderance of the evidence that the defendant has violated a condition of probation or suspension. Lewis v. State, 336 Ark. 469, 986 S.W.2d 95 (1999). The burden of proof in a jury trial or a non-jury trial is beyond a reasonable doubt.
• The rules of evidence do not apply to a revocation hearing as they do in a trial. Ark. Code Ann. § 5-4-310 (c)(2) (Repl. 1997); Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992).
• In a revocation hearing, the trial court may disallow cross-examination and confrontation of adverse witnesses for good cause. Ark. Code Ann. § 5-4-310(c)(l) (Repl. 1997).
• The exclusionary rule does not apply to a revocation hearing. Dabney v. State, 278 Ark. 375, 646 S.W.2d 4 (1993).
• The privilege against self-incrimination does not apply in the same way in a revocation hearing as it does in a trial. Courts have held that since the rules of evidence need not be strictly adhered to, the privilege against self-incrimination does not prevent consideration of inculpatory statements or a refusal to answer questions. State ex rel. Flowers v. Dep’t of Health & Social Services, 81 Wis. 2d 376, 260 N.W.2d 727 (1978). Further, “because a revocation hearing is not a criminal prosecution, the probationer may be called by the government as a witness and may be required to testify regarding his noncriminal conduct even if it amounts to a probation violation or else have his refusal to testify considered against him.” 5 Wayne R. LaFave, Criminal Procedure s 26.10(c) (2d ed.) (citing Minnesota v. Murphy, 465 U.S. 420 (1984)).
• The constitutional right to speedy trial does not apply to revocation hearings. White v. State, 329 Ark. 487, 951 S.W.2d 556 (1997); see also 21A Am. Jur. 2d Criminal Law § 920 (1998) (there is no constitutional right to a speedy trial in a revocation hearing).
Ark. Code Ann. § 5-2-305 (Repl. 1997), dealing with psychiatric examination of defendant, is inapplicable to revocation hearings. Pyland v. State, supra.
• Federal Rules of Criminal Procedure, Rule 11 regarding guilty pleas is not applicable in revocation hearings. Fed. R. Crim. P. Rule 11; U.S. v. Rapert, 813 F.2d 182 (8th Cir. 1987).
• Collateral estoppel works differently in revocation hearing and trials. A criminal conviction collaterally estops a criminal defendant from denying his or her acts in a subsequent criminal trial. But collateral estoppel does not apply to issues raised at a revocation hearing. 21 Am. Jur. 2d Criminal Law § 433 (1998).
• There is no presumption of innocence in a revocation hearing. Parole revocation, for example, is not part of criminal prosecution. Revocation is remedial rather than punitive because it seeks to protect welfare of parolees and the safety of society. Revocation hearings are not concerned with retribution. 59 Am. Jur. 2d Pardon and Parole § 96 (1987).
• Statute regarding failure to appear does not apply to an order to appear issued prior to a revocation hearing. Ark. Code Ann. § 5-54-120(d) (Repl. 1997).

The final point made by the majority is that revocation hearings are “criminal proceedings” and, thus, the Criminal Rules apply. But Rule 33.1 does not use the term “criminal proceeding.” It speaks in terms of “trials.” If this court wishes to apply Rule 33.1 to revocation hearings, it should amend the rule to do so. As matters stood until today, no one was on notice that this was the court’s interpretation.

This court interprets its rules, using the same means used to interpret statutes. Smith v. Smith, 341 Ark. 590, 19 S.W.3d 590 (2000). And we give words in our statutes their plain meaning. Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993). This was not done in the instant case. I would consider the sufficiency issue on the merits.

Imber, J., joins.

       1 We also granted a petition for review in a factually analogous case. See Thompson v. State, CA CR 99-1345, slip. op. (Ark. App. May 3, 2000). Similarly, we concluded that Rule 33.1 applies in the context of a revocation proceeding. See Thompson v. State, 342 Ark. _, __ S.W.3d _ (October 12, 2000).


author: Tom Glaze, Justice. Donald L. Corbin, Justice,

text:
    Brenda THIEL, President of the League of Women Voters of Arkansas, Inc. v. Sharon PRIEST, in Her Official Capacity as Secretary of State of Arkansas and Ex-officio Secretary of the State Board of Election Commissioners
    00-1041
    28 S.W.3d 296
    Supreme Court of Arkansas
    Opinion delivered October 12, 2000

      Robert D. Smith III; and Tom Tanner, for appellant.

      Mark Pryor, Att’y Gen., by: Dennis R. Hansen, Ass’t Att’y Gen.; and Tim Humphries for appellee.
   Tom Glaze, Justice.

In its 1999 regular session, the General Assembly enacted a number of statutory changes to require statewide county reappraisals over the next three years. See, e.g., Acts 1185, 933, and 974 of 1999. Concerned that these reappraisals would cause significant increases in assessed valuation and taxes, the General Assembly sought to limit the impact of such appraisals. In doing so, pursuant to art. 19, § 22, of the Arkansas Constitution, it adopted a proposed constitutional amendment (hereafter proposed Amendment No. 2). The amendment’s announced primary purpose, as set out in the proposal’s popular name and ballot title, is to limit the increase in the assessed value of a taxpayer’s real property after a county-wide appraisal. The General Assembly proposed the referred amendment by adopting House Joint Resolution 1015, and, while not required under art. 19, § 22 to provide a ballot title, it did so. The Attorney General designated the proposal Amendment No. 2 and declared (added) a popular name to the amendment as required by Ark. Code Ann. § 7-9-110 (Repl. 2000).

On August 25, 2000, Brenda Thiel, an Arkansas registered voter and the President of the League of Women Voters of Arkansas, Inc., filed a timely complaint in the Pulaski County Circuit Court requesting a declaratory judgment and a writ of mandamus. Thiel requested the circuit court to declare that Amendment No. 2’s popular name and ballot tide are unintelligible as to the proposal’s scope and import and that the ballot title is materially incomplete and misleading to the extent that it is a manifest fraud on the public. Thiel also asked the lower court to rule Amendment No. 2 unconstitutional because it violates the Fourteenth Amendment. She further alleged these above defects required the trial court to order the Secretary of State not to certify or place Amendment No. 2 on the November 7, 2000, General Election ballot, but if the proposed amendment already appears on the ballots, the votes cast on the measure should not be counted and certified.

Thiel recognized that proposed measures under art. 19, § 22, are reviewed by the courts by a “manifest-fraud-on-the-public” standard. However, in further support of her allegations and requests, Thiel urged the circuit court to review the sufficiency of Amendment No. 2’s ballot title under the less rigorous standard of review employed when this court considers initiative constitutional proposals under Amendment 7 to the Arkansas Constitution, namely, that the ballot title should be (1) intelligible, (2) honest, and (3) impartial. See Becker v. McCuen, 303 Ark. 482, 789 S.W.2d 71 (1990).

In denying all of Thiel’s requests, the circuit court ruled its standard of review in analyzing art. 19, § 22, proposals is to determine whether Amendment No. 2’s ballot title was so deficient that it amounted to a manifest fraud on the public. Based on this standard, the lower court upheld the proposal’s ballot title. The trial court went further, however, and determined that it would conclude the measure’s ballot title sufficient and not misleading even when it used the broader but less demanding standard employed by our court in reviewing Amendment 7 initiative measures. Additionally, the trial court refused to reach Thiel’s arguments that the proposed amendment violates the equal protection clause of the Fourteenth Amendment; it reasoned that this issue would not be ripe for review unless such proposal is approved and enacted into law by the Arkansas voters. Thiel brings this appeal from the lower court’s rulings, claiming the trial court erred in failing to find or hold (1) the Amendment 7 standard of review was controlling, and (2) the ballot title was defective under the Amendment 7 standard. She further contends the circuit court should have decided that the proposed amendment violates the Fourteenth Amendment.

In making her first argument, Thiel recognizes the enormous hurdle she must overcome to show Amendment No. 2’s ballot title constitutes a manifest fraud. As she points out, our court has defined fraud as meaning (1) a false representation of a material fact; (2) knowledge that the representation is false or that there is insufficient information upon which to make the representation; (3) intent to induce action or inaction on the representation; (4) justifiable reliance on the representation; and (5) damage suffered as a result of the reliance. See McAdams v. Ellington, 333 Ark. 362, 970 S.W.2d 203 (1998). Moreover, Thiel offers Black’s Law Dictionary’s (6th ed. 1990) definition of the term “manifest” to mean something that is “evident to the senses, especially to the sight, obvious to the understanding, evident to the mind, not obscure or hidden, and is synonymous with open, clear, visible, unmistakable, indubitable, indisputable, evident, and self-evident. In evidence, that which is clear and requires no proof; that which is notorious.” In applying these defined terms to a review of ballot titles, Thiel surmises that she cannot imagine a time when a majority of the General Assembly would intentionally misrepresent a ballot title so as to bring a ballot title within the definition of manifest fraud. For this reason, Thiel asks us to discard this court’s manifest-fraud standard used in art. 19, § 22, reviews, and instead use the Amendment 7 standard in its place. This exact argument was raised but rejected in a four-to-three decision in the case of Becker v. Riviere, Secretary of State, 711 Ark. 252, 641 S.W.2d 2 (1982). Thiel now asks us to overrule that decision. She additionally points to our opinion in Becker, 303 Ark. 482, 789 S.W.2d 71, where this court questioned the propriety of having two different review standards when evaluating ballot titles, and further opined that, at our next opportunity, we would reconsider the Riviere decision and the need for two standards. That opportunity is now before us.

It is significant that we address this double standard of review because a ballot title might well pass the “manifest-fraud” test utilized in art. 19, § 22, reviews, but fail the three-pronged intelligible, honest, and impartial test used in Amendment 7 ballot title cases in initiative measures. This appears to have occurred in Riviere. There, the three dissenters submitted that the General Assembly’s referred proposed amendment concerned maximum lawful rates of interest, but its ballot title omitted material terms contained in the amendment, and they submitted those omissions were misleading and deceptive. The dissenters stated further that, while the deception did not amount to fraud, deception nonetheless existed, and that even the majority court did not deny the title before the court was misleading. As already noted, the majority court in Riviere simply upheld that the ballot title was sufficient because the title was not shown to constitute manifest fraud on the public.

In the present case, Thiel offers viable reasons why the General Assembly’s ballot title to its proposed amendment is misleading and thwarts a fair understanding of the issues presented in the proposal. For example, while the Secretary of State argues the amendment’s ballot title tells the voter that the proposal’s purpose is to limit any increase in the assessed value of a taxpayer’s real property as a result of a county-wide reappraisal, the title does not relate that there are taxpayers in some counties whose new assessments will not be limited because their property had not been previously appraised. In other words, the title fails to inform the public that the proposal treats taxpayers differently in 54 counties that have had prior county-wide reappraisals, from taxpayers in 21 other counties that have not had prior appraisals. In short, under Amendment No. 2, for taxpayers who live in one of the 54 counties where prior appraisals were conducted, their new assessment can be increased no more than 5 percent per year over a three-year period, at the end of which a second county-wide appraisal will commence. However, taxpayers in the 21 counties that had no prior appraisal are required to pay their new assessment in full over the same three-year period at a rate of one-third each year. In addition, a taxpayer who is disabled or sixty-five years of age or older is entitled under Amendment No. 2 to a lower assessed value, but the taxpayer only obtains immediate relief if he or she resides in one of the favored 54 counties.

Thiel emphasizes that the ballot title misleads the voters by failing to inform them that the proposed amendment mandates the General Assembly, without any mention or requirement of the vote of the people, to provide for procedures to increase ad valorem taxes and millage rates as necessary to protect bondholders on a countywide, rather than state-wide, basis. Although this significant constitutional mandate dealing with ad valorem taxes and millage rates is covered in section 4 of the proposed amendment, the ballot title altogether omits any mention of it except a vague reference that the proposal concerns an “adjustment of property taxes.”

We certainly agree with Thiel that the ballot title now before us has serious omissions by essentially and materially failing to cover sections 2 and 4 of Amendment No. 2. Under an Amendment 7 analysis, we would agree with Thiel that the referred amendment’s ballot title is not free from a misleading tendency. See Stilley v. Priest, 341 Ark. 329, 16 S.W.3d 251 (2000). At the least, the voters and taxpayers in the 21 counties discussed above would pause or be given serious ground for reflection as to why their increase in assessments should be treated differently than ones in the other 54 counties. Id.; see also Parker v. Priest, 326 Ark. 386, 931 S.W.2d 108 (1996) (the ballot must be free from any misleading tendency, whether of amplification, or omission, or of fallacy, and it must not be tinged with partisan coloring.)

However, while we recognize the ballot title is misleading due to the significant omissions of portions of Amendment No. 2, this observation and conclusion does not decide the crucial issue before us — should we overrule Becker v. Reviere, supra, and this court’s earlier cases that require art. 19, § 22 ballot title reviews to be evaluated under “the manifest-fraud-on-the-public” standard? Our answer, though a difficult one, is no. In reaching that decision, we further hold that no manifest fraud has been shown and Amendment No. 2’s ballot title and popular name withstands Theil’s challenge and should not be struck from the November 7, 2000, General Election ballot. We now address the reasons for our continued adherence to the manifest-fraud standard.

First, we consider the State’s position that this court has repeatedly followed the “manifest- fraud” standard in art. 19, § 22 reviews during the past forty years. Walmsley v. McCuen, 318 Ark. 269, 885 S.W.2d 10 (1994); Becker, 303 Ark. 482, 789 S.W.2d 71; Riviere, 277 Ark. 252, 641 S.W.2d 2; Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976); Berry v. Hall, 232 Ark. 648, 339 S.W.2d 433 (1960). In the Chaney decision, the court noted the two entirely different methods by which it has reviewed referred constitutional amendments under art. 19, § 22, as compared to initiative proposals under Amendment 7. The Chaney court further pointed out that proposals referred by the General Assembly require no ballot title, unlike those measures that are initiated under Amendment 7. Art. 19, § 22, only requires that proposals by the General Assembly be so submitted as to enable the people to vote on each amendment separately, and this court in Chaney determined that the popular name, alone, served this function. Chaney, 259 Ark. at 297. Our court has offered the following several reasons why measures referred by the General Assembly should have a less demanding review in gaining a position on the voter’s ballot:

Legislative proposals are distinguished on the ballot from those initiated in a manner that the voters can differentiate between them. It is notable that the constitution requires that amendments proposed by the General Assembly be published for six months before the election in a newspaper in each county, but only requires one prefiling publication of an initiated proposal and such other publications as may be required by law. On the other hand, there is no permanent official record of initiated proposals. Furthermore, we must keep in mind that, when proposing a constitutional amendment, the General Assembly acts in the character and capacity of a constitutional convention and not in the exercise of its ordinary legislative authority. (Citations omitted.) (Emphasis added.)

Following the Chaney decision, the court in Riviere summarized the Chaney rationale and added another reason for utilizing a less rigorous standard when approving ballot titles on art. 19, § 22 proposals:

Art. 19, § 22 does not specifically require a ballot title. All that is required is that the proposed amendment under art. 19, § 22 “be so submitted as to enable the electors to vote on each amendment separately.” So, the purpose of the “Ballot Title” under art. 19, § 22 is not to inform the voter, but merely to distinguish and identify the amendment. Voters can be presumed to be informed as to the contents of the amendment since art. 19, § 22 specifically requires an extended publication period of six separate monthly insertions in one newspaper in each county prior to the election. (Emphasis added.)

Riviere, 277 Ark. at 254-255; see also Walmsley, 318 Ark. 269, 272, 885 S.W.2d 10, 11.

In sum, this court in prior case law has largely reviewed art. 19, § 22, proposals differently, not only because the constitutional provision itself provides for numerous publications of the General Assembly’s proposed amendment, but also because of the General Assembly’s notable, public action taken when it approves and refers such a measure. It is not an insignificant moment when the General Assembly exercises its constitutional convention power in referring a measure by entering it on each house’s journal by the yea and nay votes.

While we do have the power to overrule prior decisions, it is necessary, as a matter of public policy, to uphold those decisions unless a great injury or injustice would result. Sanders v. County of Sebastian, 324 Ark. 433, 922 S.W.2d 334 (1996). The United States Supreme Court has recognized that adherence to precedent promotes stability, predictability, and respect for judicial authority. Id.; Zinger v. Terrell, 336 Ark. 423, 985 S.W.2d 737 (1999). In applying these controlling principles to the situation at hand, we simply are unable to say our cases using the manifest-fraud standard to review art. 19, § 22 measures should be overturned. As discussed above, there are sound reasons given to adhere to this review standard when this court considers art. 19, § 22, referred proposals. If any great injustice should possibly result, the members of the General Assembly who referred Amendment No. 2 will certainly remain accountable to the voters, as their record in referring the amendment is permanent and available to all interested persons. Such accountability is not generally available regarding measures initiated under Amendment 7.

Thiel offers another argument as to why the lower court’s decision not to remove Amendment No. 2 is erroneous. Thiel contends, as she did below, that the proposed amendment’s disparate treatment of taxpayers in the 21 counties as described above is arbitrary and capricious and violates the Equal Protection Clause of the Fourteenth Amendment. We decline to address this argument, however, because this issue is not ripe for review until (or unless) the proposed measure becomes law and a case in controversy arises. See Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996).

In conclusion, while we affirm the lower court’s ruling which leaves Amendment No. 2 on the ballot, we note there is still a serious issue that looms undecided. We are unable to reach the issue at this time. Thiel appropriately points out that the General Assembly has enacted Act 1492 of 1999 (Ark. Code Ann. §§ 26-53-107(c) and 26-52-302(c)(l) (Repl. 2000)), which provides that upon passage of proposed Amendment No. 2, the Arkansas sales and use tax will automatically increase by one-half percent. Thiel opines this misleads electors voting for the amendment’s passage. The State, on the other hand, argues that, because the text of Amendment No. 2 itself makes no mention of Act 1492, its ballot title omitting the possible increase in the sales and use tax is neither misleading nor fraudulent. Technically, the State is right. Nonetheless, the issue remains that an Arkansas voter who reads either the ballot title or text of Amendment No. 2 will never be apprised that if he or she votes for the amendment, the amendment’s passage will trigger an automatic increase in the State’s sales and use tax. The question also arises whether the General Assembly actually is empowered to enact a law such as Act 1492, which makes its viability contingent upon the future approval of a referred or initiated measure. For example, some question exists as to whether such laws that take effect upon future events violate the people’s right of referendum under Amendment 7 provisions. The State submits that Arkansas voters likely retain their right of referendum because they are deemed on constructive notice that Act 1492 has been enacted. The State offers no citation of authority to support its argument.

Undoubtedly, there are serious questions surrounding Amendment No. 2 and its so-called enabling legislation if the voters approve the amendment. However, resolving those issues we are able to address and decide, we agree, based on the reasons given above, that the trial court was correct in ruling the proposed amendment’s ballot title is not legally deficient. We therefore affirm. The mandate is ordered issued within five days from the filing of this opinion unless a petition for rehearing is filed.

Corbin, J., dissents.

Donald L. Corbin, Justice,

dissenting. I agree with the majority that proposed amendments submitted by the General Assembly should be reviewed under the “manifest fraud” standard. Amendments proposed by the legislature undergo extensive deliberations among the members of both houses before they are ever submitted to the voters. Moreover, as the majority points out, the requirements for publication and dissemination of such proposed amendments are exhaustive.

I dissent, however, because I believe that a manifest fraud has been committed in this instance. In my opinion, the legislature has engaged in trickery and deceit by failing to inform the voters that upon the passage of this proposed amendment, a legislative enactment will take effect that raises the Arkansas sales and use tax by one-half percent. The trickery lies in the fact that by voting for the proposed amendment, the voter is unknowingly approving an increase in the state sales and use tax. Thus, the voter is duped into believing that by approving the amendment, he or she will receive tax relief. All the while, the voter is ignorant to the fact that any tax relief afforded by the amendment will likely be canceled out by the increase in the sales and use tax.

Surely, if the voters were aware that they were merely trading one type of tax for another, they would have serious ground to pause and reflect before approving this amendment. This is especially true for those voters who do not own any real property, as they would not receive any tax relief under the amendment, but nonetheless would be adversely affected by the increase in the sales and use tax. Because the General Assembly has intentionally elected not to disclose this crucial information to the voters, I believe it has committed a manifest fraud upon the public, and I dissent.

       The same formula of disparate treatment pertains to non-homestead property, but the limit applied to taxpayers in the 54 counties is 10 percent of the assessed value.

       While this court has recognized different standards for ballot titles for forty years, we note that the words “manifest fraud on the public” were first mentioned in Riviere.

       In her reply brief, Thiel cites Act 877 of 1999 (Ark. Code Ann. §§ 7-9-501 -506 (Repl. 2000)), which provides for this court to review measures under Amendment 7, not proposals under art. 19, § 22.


author: Donald L. Corbin, Justice. Robert L. Brown, Justice, Annabelle Clinton Imber, Justice,

text:
    MILBERG, WEISS, BERSHAD, HYNES, and LERACH, LLP; Niblock Law Firm; and Law Offices of Steven E. Cauley, P.A. v. STATE of Arkansas; Phillip Morris, Inc.; R.J. Reynolds Tobacco Company; Brown and Williamson Tobacco Corporation, Individually and as Successor by Merger to American Tobacco Company; and Lorillard Tobacco Company
    99-1458
    28 S.W.3d 842
    Supreme Court of Arkansas
    Opinion delivered October 12, 2000
    [Petition for rehearing denied November 16, 2000.]

      Milberg, Weiss, Bershad, Hynes & Lerach, LLP, by: Patrick J. Coughlin and Frank J. Janacek, Jr; The Niblock Law Firm, by: George H. Niblock; and Law Offices of Steven E. Cauley, P.A., by: Steven E. Cauley, for appellants.

      Mark Pryor, Att’y Gen., by: Sammye L. Taylor, Deputy Att’y Gen., and Brian G. Brooks, Ass’t Att’y Gen., for appellee State of Arkansas.

      Hunton & Williams, by: Douglas W Davis; and Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. by: R.T. Beard, III, for certain appellees.
   Donald L. Corbin, Justice.

The issues in this case are (1) whether an attorney may intervene in a client’s settlement, after the entry of final decree, for the purpose of affecting the terms of that settlement, and (2) whether an attorney has standing to set aside a consent decree approving a client’s settlement. Appellants in this case are three law firms: Milberg, Weiss, Bershad, Hynes, and Lerach, LLP, from San Diego (Milberg-Weiss); the Niblock Law Firm, from Fayetteville; and the Law Offices of Steven E. Cauley, P.A., from Little Rock. Appellees are the State of Arkansas and the following tobacco manufacturers: Phillip Morris, Inc.; R.J. Reynolds Tobacco Company; Brown and Williamson Tobacco Corporation, individually, and as successor by merger to the American Tobacco Company; and Lorillard Tobacco Company (collectively, the “tobacco companies”). Appellants moved to intervene in the State’s tobacco settlement for the purpose of protecting their claimed interest in attorney’s fees, pursuant to an alleged contract to represent the State in that matter. Appellants also moved to set aside the consent decree approving the settlement for alleged fraud in obtaining the judgment. The Pulaski County Chancery Court denied both motions. Our jurisdiction of this case is pursuant to Ark. Sup. Ct. R. 1-2(b) (4) and (5), as it raises issues of substantial public interest needing further clarification or development of the law. We affirm.

The record reflects that on May 5, 1997, the State filed suit against the tobacco companies seeking monetary and equitable relief. Throughout 1997 and 1998, numerous orders were entered by the chancery court granting extensions of time for the tobacco companies to file their answers and other responsive pleadings. Eventually, a global setdement was reached between the tobacco companies and fifty-two states and other governmental units, including Arkansas. The terms of the settlement were memorialized in two different documents: (1) a Master Settlement Agreement (MSA), entered between the states and the major cigarette manufacturers, and (2) a Smokeless Tobacco Master Settlement Agreement (STMSA), entered between the states and the smokeless tobacco companies. Arkansas’s Attorney General signed the MSA and the STMSA on November 23, 1998. A stay in the proceedings was then granted on November 30, 1998, to give the parties an opportunity to effectuate the settlement. As a result of the numerous extensions of time and the ultimate settlement of the law suit, no answer was ever filed by any of the tobacco companies, and the parties never conducted any formal discovery. On December 10, 1998, the chancery court entered a consent decree, pursuant to the settlement agreements, that ended the litigation and obligated the tobacco companies to pay the State $1.62 billion over a twenty-year period.

Approximately three weeks later, on December 30, 1998, Appellants filed a motion to intervene in the settled lawsuit between the State and the tobacco companies. Attached to the motion was a notice of attorney’s lien for $243 million, an amount equal to fifteen percent of the State’s share under the MSA. Appellants asserted that a contract had been negotiated between the State and MilbergWeiss, wherein Milberg-Weiss would represent the State in the tobacco litigation. Appellants admitted, however, that the contract was never executed. Appellants sought intervention so that they could be hsted as designated outside counsel on Exhibit “S” of the MSA. Under the terms of the MSA, those private attorneys designated as outside counsel would be paid reasonable attorney’s fees through a pool of money funded by the tobacco companies. Thus, the various states’ shares of the settlement would not be diminished by the amount of attorney’s fees for private counsel. Conversely, private attorneys not Hsted on Exhibit “S” would not receive payment from the tobacco companies and would have to seek payment from the states or governmental units that hired them.

Appellants also filed a motion to set aside the December 10, 1998 consent decree pursuant to Ark. R. Civ. P. 60. AppeHants claimed that contrary to its terms, the settlement was not in the best interest of Arkansas’s citizens. Appellants asserted that because they were not designated as outside counsel in the MSA, any fees dues to them would be payable by the State from its share of the settlement, thus diminishing the benefit to the citizens. Appellants later argued that the consent decree was fraudulently obtained based on alleged misrepresentations made to the chancery court at the time the decree was signed. Much of Appellants’ argument regarding fraud stemmed from information contained in a January 1, 1999 article in the Arkansas Democrat-Gazette titled “ChanceHor cries foul about fees.” In the article, former Pulaski County Chancellor WH. “Sonny” Dillahunty reported that it was doubtful that he would have signed the setdement between the State and the tobacco companies had he known that the issue of outside attorney’s fees had not been resolved. He stated that when he signed the consent decree, both the State’s and the tobacco companies’ lawyers had stated that the tobacco companies would pay the private lawyers’ fees.

On January 1, 1999, Mackie Pierce replaced Chancellor Dillahunty as Pulaski County Chancellor for the Sixth Division and took over this case. Shortly thereafter, on January 11, 1999, the last day of his tenure in office, Attorney General Winston Bryant filed a motion to amend the consent decree to add the law firm of Mil-berg-Weiss to Exhibit “S” of the MSA. The tobacco companies objected to any such amendment on the grounds that (1) Appellants lacked standing to set aside the decree, and (2) there was no evidence that Appellants ever did any work in securing the settlement. The tobacco companies pointed to representations made by Bryant in a Democrat-Gazette article dated December 31, 1998, wherein Bryant explained that the reason Appellants were not originally designated as outside counsel on the MSA was because the Attorney General’s office had done all the work. Bryant stated: “I took the position that if the lawsuit was settled, we didn’t need outside counsel, so the contract was never executed.” The State eventually withdrew its motion to amend the consent decree on March 29, 1999.

On August 10, 1999, after considerable pleading from all participants, Appellants’ motions were heard by the chancery court. The parties stipulated that a valid contract existed between MilbergWeiss and the State, for the limited purpose of considering Appellants’ motions. Notwithstanding, the chancellor denied Appellants’ motion to intervene, either by right or permission, and also denied the motion to set aside the consent decree. Additionally, the chancellor found that the State was entitled to the defense of sovereign immunity. Appellants contest each of these three rulings on appeal. They also claim that the chancellor erred in failing to join them as necessary parties to the lawsuit under Ark. R. Civ. P. 19. We do not address this additional argument, as it is clear from the record that is was raised at the last minute and was never ruled on by the chancellor. It is well settled that the failure to obtain a ruling from the trial court is a procedural bar to our consideration of the issue on appeal. See Ross Explorations, Inc. v. Freedom Energy, Inc., 340 Ark. 74, 8 S.W.3d 511 (2000) (citing Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997)); Howard v. Northwest Arkansas Surgical Clinic, P.A., 324 Ark. 375, 921 S.W.2d 596 (1996); Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996)). We discuss the remaining three issues separately.

I. Intervention under Rule 24

Appellants argue that the chancellor erred in denying their motion to intervene in the lawsuit between the State and the tobacco companies. Appellants contend that under their contract with the State, they are obligated to seek their fees from the tobacco companies. Thus, Appellants assert that intervention is necessary to protect their rights to attorney’s fees under the contract. They also argue that their application for intervention was made in a timely manner, as they claim that they had no cause to intervene until the consent decree was signed and it was revealed that they were not listed on Exhibit “S” of the MSA. Appellants claim further that the parties would not have been prejudiced by the timing of the intervention, because they assert that the State would not have begun receiving payments under the tobacco settlement until December 1999, one year after intervention was sought. We find no merit to these arguments.

The procedure for intervention is set out in Rule 24 of the Arkansas Rules of Civil Procedure, which provides in pertinent part:

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of this state confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

A threshold question in determining whether intervention should be allowed is whether application was made in a timely manner. Employers Nat’l Ins. Co. v. Grantors, 313 Ark. 645, 855 S.W.2d 936 (1993). The issue of timeliness is a matter well within the sound discretion of the trial court and is subject to reversal only where that discretion has been abused. Id. There are three factors that a trial court must consider in determining timeliness: (1) how far the proceedings have progressed; (2) any prejudice to other parties caused by the delay; and (3) the reason for the delay. Id.; Cupples Farms Partnership v. Forrest City Prod. Credit Ass’n, 310 Ark. 597, 839 S.W.2d 187 (1992). Using this test, the chancellor found that Appellants’ application for intervention was untimely.

First, the chancellor found that the proceedings had progressed to and past the entry of a final decree before intervention was sought. The record reflects that the motion to intervene was not filed until approximately three weeks after the consent decree was entered, and the complaint in intervention was not filed until some six months later, on July 27, 1999. There is no question that the entry of the consent decree ended the litigation between the State and the tobacco companies. Thus, the motion to intervene was clearly filed after the proceedings were completed and a final judgment was entered. Arkansas courts have shown a strong reluctance to grant intervention after final judgment. UHS of Ark., Inc. v. City of Sherwood, 296 Ark. 97, 752 S.W.2d 36 (1988). See also Wilson v. Harris, 227 Ark. 808, 302 S.W.2d 86 (1957) (holding that, generally, once litigation has progressed to final judgment, it is too late for third persons to intervene). Postjudgment intervention is generally allowed only upon a strong showing of entitlement by the applicant or a demonstration of unusual and compelling circumstances. Id. As will be seen below, the evidence here falls short of establishing a strong showing of entitlement or compelling circumstances.

As for the second timeliness factor, the chancellor found that the parties to the suit, the State and the tobacco companies, would be prejudiced by the delay caused by intervention. Specifically, the chancellor found that under the terms of the MSA, “State-Specific Finality” cannot occur as long as litigation is ongoing in the matter. Section XI(f)(3) of the MSA provides that “[n]o amounts may be transferred or credited to a State-Specific Account for the benefit of any State as to which State-Specific Finality has not occurred[.]” “State-Specific Finality” occurs when (1) the MSA and the resulting consent decree have been approved and entered by the chancery court as to all original participating manufacturers or, in the event of an appeal, by the court hearing such appeal; (2) the court has entered an order dismissing with prejudice all claims against the released parties; and (3) the time for appeal or review of these orders has expired, or, in the event of an appeal, the orders have been affirmed in all material respects by the court of last resort and are no longer subject to further appeal. All three factors must occur to achieve State-Specific Finality. In the present case, the delay that would have resulted from allowing Appellants to intervene would have prejudiced the State by postponing its achievement of State-Specific Finality and, in turn, its receipt of settlement payments.

Additionally, there is potential prejudice to the remaining fifty-one states and governmental units that signed the settlement. The MSA provides that no settling states or governmental units will begin receiving payments until the occurrence of “Final Approval.” “Final Approval,” as defined in the MSA, means the earlier of (1) the date on which State-Specific Finality has occurred in a sufficient number of the settling states, or (2) June 30, 2000. As used in that definition, “State-Specific Finality in a sufficient number of Settling States” means that State-Specific Finality has occurred in at least eighty percent of the total number of settling states having aggregate allocable shares of the settlement equal to at least eighty percent of the total aggregate allocable shares assigned to all settling states. Thus, to a large degree, receipt of payment by any one settling state is dependent upon the achievement of State-Specific Finality in the other settling states.

For the third factor in determining timeliness, the chancellor found that there was no sound or compelling reason for the delay in seeking intervention. The chancellor was unpersuaded by Appellants’ argument that any delay was due to the .State’s refusal to keep them informed of the date when the consent decree was to be signed. The chancellor based this conclusion on his review of the correspondence between Appellants and the Attorney General’s office, dated from September 16, 1998, to December 8, 1998. The letters clearly demonstrate Appellants’ desire to have Milberg-Weiss placed on Exhibit “S,” as opposed to having to pursue a claim for fees against the State. The letters also reveal Appellants’ awareness that they had not been included on Exhibit “S,” and that the time for signing the MSA and entering the consent decree was rapidly approaching or had possibly passed.

For example, a letter dated November 17, 1998, from Appellant Cauley to Winston Bryant contains a statement by Cauley that he had reviewed the MSA and was aware that the agreement was to be signed that week. Indeed, the MSA reflects that the date for agreeing to the settlement was November 23, 1998. Similarly, a letter from Cauley to Assistant Attorney General Timothy Gauger, dated December 8, 1998, reflects in part: “When do you anticipate seeking the state’s consent decree, or have you done so already?” (Emphasis added.) The chancellor found that this statement was indicative of Cauley’s knowledge that Milberg-Weiss had not been listed on Exhibit “S,” and that the possibility existed that the consent decree may have already been entered. Collectively, these two letters show that, as of December 8, 1998, Appellants were aware that the MSA had already been signed and that the implementing consent decree may have already been entered. Yet despite this knowledge, no intervention was sought until some three weeks after the decree was actually entered. The chancellor found that had Appellants desired to protect their interest by intervening in the case, the proper time to do so was prior to December 10, 1998. Such timely intervention was not sought, the chancellor found, not because Appellants were kept in the dark about the progression of the settlement, but because Appellants did not wish to appear adversarial to their alleged client.

Given all the facts and circumstances of this case, we cannot say that the chancellor abused his discretion in finding that the motion to intervene was untimely. Appellants simply have not shown unusual or compelling circumstances that prevented them from seeking intervention prior to the time that final judgment was entered. Moreover, Appellants have failed to show that the parties to the tobacco suit would not have been prejudiced by the delay caused by intervention.

In any event, regardless of the untimely application, Appellants were not entitled to intervene as a matter of right, pursuant to Rule 24(a). There are three requirements that must be met to intervene as a matter of right: (1) a recognized interest in the subject matter of the primary litigation; (2) an interest that might be impaired by the disposition of the suit; and (3) an interest not adequately represented by the existing parties. Matson, Inc. v. Lamb & Assocs. Packaging, Inc., 328 Ark. 705, 947 S.W.2d 324 (1997); Pearson v. First Nat’l Bank, 325 Ark. 127, 924 S.W.2d 460 (1996). When these three requirements are met and timely application is made, intervention of right should be granted. If, however, a party seeking intervention will be left with the right to pursue an independent remedy against the parties in the primary proceeding, regardless of the outcome of the pending case, then the party has no interest that needs protecting by intervention of right. Id.; Billabong Products, Inc. v. Orange City Bank, 278 Ark. 206, 644 S.W.2d 594 (1983).

Here, the chancellor found that none of the requirements for intervention of right were met. Specifically, the chancellor found that Appellants had no recognized interest in the subject matter of the litigation between the State and the tobacco companies. The chancellor reasoned that what Appellants sought, payment of attorney’s fees under a contract with the State, was nothing more than a “classic attorney-client fee dispute.” Conversely, the chancellor characterized the underlying litigation as a suit seeking damages and injunctive relief on behalf of Arkansas’s citizens against the tobacco companies for health problems stemming from the use of tobacco products. Secondly, although the chancellor agreed with Appellants that their interests in collecting attorney’s fees were not adeq'uately represented by either party to the litigation, he found that such interests were not the property or transaction that was the subject of the suit.

Lastly, and perhaps most significantly, the chancellor found that Appellants’ interest in obtaining attorney’s fees would not be impaired by the disposition of the litigation between the State and the tobacco companies. This finding was based on Appellants’ ability to pursue an independent remedy against the State for attorney’s fees, based on the proceeds awarded to the State under the settlement. Assuming that Appellant had a valid contract with the Attorney General to represent the State in the tobacco litigation, and the State failed to pay under the terms of that contract, Appellants would have the right to bring the alleged breach-of-contract claim before the Arkansas State Claims Commission. The State Claims Commission has exclusive jurisdiction over payment of all just and legal debts of the State. See Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 784 S.W.2d 771, cert. denied, 498 U.S. 824 (1990); Ark. Code Ann. § 19-10-204 (Repl. 1998). Thus, because Appellants have the right to pursue their claim elsewhere, they have no right to intervene in this matter. See Billabong Products, Inc., 278 Ark. 206, 644 S.W.2d 594.

Likewise, Appellants do not qualify for permissive intervention under Rule 24(b), which provides for permissive intervention (1) where a state statute confers a conditional right to intervene, or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. Permissive intervention is discretionary, depending upon whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Rule 24(b); Billabong Products, Inc., 278 Ark. 206, 644 S.W.2d 594. This court will not reverse the trial court’s decision unless there has been an abuse of discretion. Id. Here, Appellants have cited no state statute that confers upon them a conditional right to intervene, nor have they shown that their claim for attorney’s fees and the underlying litigation have a common question of law or fact. As stated above, Appellants’ claim is merely one for attorney’s fees for allegedly representing one of the parties to the suit. It has nothing in common with the substantive claims asserted in the underlying suit. Accordingly, we cannot say that the chancellor abused his discretion in denying permissive intervention.

In sum, Appellants failed to show that intervention was warranted either by right or permission. The motion to intervene was not filed until after the underlying litigation had been settled and a final decree entered. Appellants failed to demonstrate that their application for intervention was timely under the three criteria set out by this court. Appellants further failed to show that they were entitled to intervene, as it was undisputed that Appellants had an independent remedy against the State for any alleged fees that were owed. Appellants also failed to demonstrate that permissive intervention was available, given the chancellor’s finding that Appellants’ claim had no question of law or fact in common with the litigation between the State and the tobacco companies. Accordingly, we affirm on this issue.

II. Setting Aside Consent Decree under Rule 60

Appellants next argue that the chancellor erred in refusing to set aside the consent decree on the ground that it was procured by fraud. The chancellor found that Appellants lacked standing to challenge the terms of the consent decree. Particularly, the chancellor found that Appellants (1) were not parties to the setdement and were not permitted to intervene in the matter; (2) were not attorneys of record in the tobacco litigation; (3) had never appeared before the chancery court representing the State or communicated with the court on behalf of the State; and (4) had never communicated with any attorneys for the tobacco companies in the litigation. As such, the chancellor concluded that Appellants were not bound by the terms of the consent decree and thus had no standing to set aside the decree. We agree.

It is a well-recognized general rule that strangers to the record have no standing on which to base an application to vacate a judgment, unless so authorized by statute. Weill v. Weill, 226 Ark. 206, 288 S.W.2d 946 (1956). See also 47 Am. Jur. 2d Judgments § 757 (1995). Thus, one not a party or privy to the action, or who is not bound by the judgment or prejudiced by it, may not apply to set aside the judgment. Id; Restatement (Second) of the Law of Judgments § 64 (1982). The Restatement further provides: “An attorney for a party is generally regarded as lacking standing to set aside a judgment for or against his client even though the attorney’s compensation may he dependent on the amount or terms of the judgment.” Id. at cmt. d (emphasis added). This principle finds support in our decisions regarding an attorney’s ability to effect the terms of a client’s settlement.

It is setded law that an attorney cannot compel his or her client to continue litigation; the client may dismiss or settle the cause of action without consulting the attorney. Cato v. Ark. Mun. League Mun. Health Benefit Fund, 285 Ark. 419, 688 S.W.2d 720 (1985); Jarboe v. Hicks, 281 Ark. 21, 660 S.W.2d 930 (1983); Martin v. Pope, 226 Ark. 522, 290 S.W.2d 849 (1956) (per curiam). “Of course, in ordinary litigation such setdement would be subject to the contractual rights of the attorney in the proceeds of the settlement.” Id. at 523, 290 S.W.2d at 849 (emphasis added). In other words, an attorney retained by contract for a contingent fee may have a right to collect his fee from the proceeds of the settlement; however, he would not have a right to dictate the terms of the settlement or the amount. Yet, that is precisely what Appellants are attempting to do.

Appellants concede that only their alleged client, the State, through its Attorney General, is empowered to designate private outside counsel under the MSA. The Attorney General, for whatever reason, never saw fit to do so prior to the entry of the consent decree. Appellants have not provided us with any citation of authority, and we are aware of none, that would permit them to challenge their client’s decision to agree to particular terms of a setdement merely to protect their interest in collecting a higher fee. See Nash v. Estate of Swaffar, 336 Ark. 235, 983 S.W.2d 942 (1999). Thus, we agree with the chancellor that because their alleged client chose to setde the suit without designating any attorneys on Exhibit “S,” Appellants’ only available remedy is to attempt to secure its fees from the proceeds of the State’s settlement.

Moreover, we agree with the chancellor that once the decree was entered, the Attorney General no longer had- the option of amending Exhibit “S” without the agreement of the participating tobacco manufacturers and the remaining settling states. The MSA provides that the agreement may not be amended or modified except by written instrument executed by the participating tobacco manufacturers that would be affected by such amendment and by all the settling states affected by the amendment. The amendment or modification proposed here would affect all those states and governmental units who had already designated outside counsel to receive fees from the pool of money provided by the participating tobacco manufacturers, in that the designation of any additional counsel would necessarily dilute the amounts received by those attorneys already designated as outside counsel. The MSA provided for a limit or cap on the amount of monies that would be expended each year by the participating manufacturers for the payment of all outside attorney’s fees, no matter how many attorneys were due to receive awards. Thus, the number of attorneys attempting to collect such fees would necessarily affect the amount of fees received by the individual attorneys. This, in turn, would affect the amount payable by the settling states under their respective contracts with outside counsel.

Section 5 of Exhibit “O” of the MSA provides that the rights and obligations of the parties to a contract between a settling state and outside counsel shall not be affected except (1) insofar as outside counsel grants the state a release, and (2) to the extent that any fee awarded under the MSA will be credited dollar-for-dollar against any amount due under the contract. In other words, unless a proper release is executed relieving the settling state of any obligation to pay the contract fees or unless outside counsel receives complete compensation from the tobacco companies’ fund, the contracting state may be responsible for making up the difference in payment. Thus, a reduction in the amount paid to outside counsel, i.e., from the addition of more attorneys eligible to seek fees from the tobacco companies, could correspondingly result in an increase in the amount a settling state would have to pay to satisfy its contract with said outside counsel.

We further agree that under this court’s case law, the chancellor was without authority to unilaterally modify or amend the consent decree. The chancellor correctly relied on this court’s holding that “[ajbsent a showing of fraud in the inducement of the original agreement, or unless both parties presently consent, the court is powerless to modify that portion of the decree based on the contract settlement between the parties.” Anding v. Anders, 249 Ark. 413, 414-15, 459 S.W.2d 416, 417 (1970) (citations omitted) (emphasis added). See also Murdock v. Slater, 326 Ark. 1067, 935 S.W.2d 540 (1996); Selig v. Barnett, 233 Ark. 900, 350 S.W.2d 176 (1961) (holding that a consent judgment is a judgment not reached by the court, but agreed to by the parties and merely recorded with the sanction of the court). There is no evidence here that fraud was committed by one party to induce the other party to settle the case. Nor is there evidence that both parties presently consent to Appellants’ proposed modification. To the contrary, the State and the tobacco companies are satisfied with the original terms of the agreement.

Accordingly, we affirm the chancellor’s refusal to set aside the consent decree for lack of standing. Appellants are not parties or privies to the suit between the State and the tobacco companies, and they have no standing to attempt to set aside the consent decree, for fraud or any other reason. Appellants are not bound by the consent decree, nor are their rights to attorney’s fees impaired or affected by the terms of the consent decree. Assuming arguendo that Appellants represented the State in any phase of the tobacco litigation and that their fees were dependent upon the outcome of the suit, they still have no standing to set aside the consent decree against their client’s wishes. Appellants are powerless to challenge their alleged client’s settlement of the case. Furthermore, the chancellor has no more authority to modify the terms of the settlement agreed to by the litigants, than Appellants have authority to force their client to settle on their terms.

III. Sovereign Immunity

For the final point for reversal, Appellants argue that the chancellor erred in ruling that the State was immune from Appellants’ claims in the chancery court. Sovereign immunity is jurisdictional immunity from suit. State Office of Child Support Enforcem’t v. Mitchell, 330 Ark 338, 954 S.W.2d 907 (1997). This defense arises from Article 5, § 20, of the Arkansas Constitution, which provides: “The State of Arkansas shall never be made a defendant in any of her courts.” This court has consistently interpreted this constitutional provision as a general prohibition against awards of money damages in lawsuits against the state and its institutions. See, e.g., Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997); Fireman’s Ins. Co., 301 Ark. 451, 784 S.W.2d 771. The doctrine of sovereign immunity is rigid and may only be waived in limited circumstances. Mitchell, 330 Ark 338, 954 S.W.2d 907. This court has recognized only two ways in which a claim of sovereign immunity may be surmounted: (1) where the state is the moving party seeking specific relief; and (2) where an act of the legislature has created a specific waiver of immunity. Id. In reviewing the sovereign-immunity issue, we first determine whether Appellants have made a claim against the State.

Appellants assert that their claim is not one against the State, because they seek payment only from the tobacco companies, under the fund created by the MSA. However, given the chancellor’s denial of intervention and our affirmance of that ruling, Appellants’ claim for attorney’s fees is now a claim against the State, either pursuant to an attorney’s lien or under a claim of breach of contract. Either way, it is obvious that the claim is one against the State that will necessarily require payment from State funds.

The question, then, is whether the State has waived its sovereign immunity in this matter. This court has consistently recognized that the only exception to sovereign immunity, other than where the legislature has specifically waived such immunity, occurs when the State is the moving party seeking specific relief. Mitchell, 330 Ark. 338, 954 S.W.2d 907; Fireman’s Ins. Co., 301 Ark. 451, 784 S.W.2d 771. Even then, however, the defense is only waived as to any counterclaim or offset. Id. Because Appellants are not parties to the suit or intervenors, this exception is not applicable. We are not persuaded by Appellants’ reliance on Arkansas State Highway Comm’n v. Roberts, 248 Ark. 1005, 455 S.W.2d 125 (1970), in support of their argument that when the state is a suitor in state court, it subjects itself to the claims of nonparties. There, the state had obtained some land, via its power of eminent domain, and was attempting to use the shield of sovereign immunity to defeat the claim of two intervenors who asserted an interest in the land as remaindermen. The distinction between that case and the one at hand is that the nonparties claiming against the state were in fact intervenors. Moreover, this court held that because the intervenors had an interest in land that was being taken under eminent domain, they were necessary parties to the state’s action.

Appellants also contend that the State waived its immunity when it moved to amend the consent decree to include Appellants on the list of designated outside counsel provided for in the MSA. Appellants rely on our recent holding in Lake View School Dist. No. 25 v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000). That case involved a class-action lawsuit against the state for inequities in the public school funding system. By way of legislation, the state subsequently attempted to solve those inequities. The result was the creation of a fund of $130 million. The attorneys for the school district sought attorney’s fees on the ground that the work they had done not only benefited the Lake View school district, but had actually benefited every school district in the state. In a proposed agreed order, counsel for all parties, including the Attorney General’s office, agreed that the chancery court should make a determination of reasonable attorney’s fees and costs to be paid to counsel for the school district. Although the chancery court rejected the agreed order, it later announced the figure of $7 million as proposed attorney’s fees for the purpose of notifying the class members of a settlement. The chancery court ultimately denied recovery of attorney’s fees based, in part, on the state’s subsequent claim of sovereign immunity. This court reversed the chancellor’s finding:

We conclude that when the State of Arkansas signed off in two published notices to the class members advocating that attorneys’ fees be paid and continued to push for payment of attorneys’ fees even after the chancery court refused to sign the Agreed Order, it waived its sovereign-immunity defense to payment of those fees. We do understand that the State was seeking resolution of this litigation by supporting payment of those fees, but we are hard pressed to reconcile published notices to class members supporting fees and representations to the chancery court to the same effect with a later claim of immunity.

Id. at 496, 10 S.W.3d at 901 (citations omitted).

Appellants argue that the actions of the Attorney General in this case are very similar to those in Lake View. Specifically, Appellants rely on the Attorney General’s motion to amend the consent decree, filed on January 11, 1999. In that motion, the Attorney General asked the chancery court to add Appellants to the list of designated outside counsel in Exhibit “S” of the MSA. The proposed amendment reflected inpart:

Although no final contract was executed and the case was not tried, Milberg Weiss performed certain legal services and incurred certain expenses in anticipation .of the contract and the litigation. The work performed by Milberg Weiss would undoubtedly have benefited the State’s case had the litigation not been resolved by settlement.

Appellants argue that under Lake View, this motion and proposed amendment amounted to a waiver of sovereign immunity. We disagree.

The state’s actions in Lake View are distinguishable, in that, there, the state not only advocated the payment of attorney’s fees in general, it advocated that the fees be paid from state funds. Here, however, the State advocated only that Appellants be paid attorney’s fees from the tobacco companies. The State’s motion to amend reflects that it had obtained releases from Appellants that they “have agreed to seek fees and costs only from the tobacco industry and the smokeless tobacco industry and to waive and release any and all claims against the State.” The motion reflects further: “This amendment to the Consent Decree will mean that these attorneys will have no claim on Arkansas’ share of the historic setdement with the tobacco and smokeless tobacco industry and will look only to the industry for fees and costs.” Additionally, unlike the situation in Lake View, the State did not continue to push for attorney’s fees on behalf of Appellants. To the contrary, the State withdrew its motion before any action had been taken by the chancery court. It is thus clear that the State never waived its immunity from a claim for attorney’s fees to be collected from State coffers. Accordingly, our decision in Lake View does not require a reversal of the chancellor’s finding that the State was entitled to the defense of sovereign immunity.

We further reject Appellants’ argument that the State waived its immunity by the alleged actions done in bad faith by various persons in the Attorney General’s office. This argument is based on the alleged fraud committed by the State’s attorneys by informing Chancellor Dillahunty that there would be no claims for fees from private attorneys. The cases that Appellants rely upon pertain to situations in which (1) state officers or agents are sued individually for actions done ultra vires or in bad faith, or (2) only injunctive relief is sought. Those cases are obviously inapplicable to the circumstances here.

We thus affirm the chancellor’s ruling that the State is entitled to sovereign immunity from Appellants’ claim for attorney’s fees brought in state court. There is no convincing evidence that the State waived its immunity merely by filing its tobacco suit in state court. Under this court’s cases, the State’s immunity would only be considered waived as to any counterclaims or offsets. Because Appellants are not parties to the State’s suit and were not permitted to intervene in the action, the State is immune from their claims in state court. Furthermore, the State did not waive its immunity when it temporarily advocated that Appellants be listed on Exhibit “S” so that they could be paid fees by the tobacco manufacturers. Accordingly, the State is immune from Appellants’ claim for fees in state court. This is not to say, however, that Appellants are precluded from seeking payment of their fees from the State in the proper forum, i.e., the Arkansas State Claims Commission.

Affirmed.

Brown, Imber, and Smith, JJ., concur.

Robert L. Brown, Justice,

concurring. I agree with the result reached in this case. However, on the issues of intervention, I would affirm solely for the reason that the law firms did not have a recognized interest in the subject matter of the primary litigation and settlement. That, of course, is one of the criteria for intervention as a matter of right. Matson, Inc. v. Lamb & Assocs. Packaging, Inc., 328 Ark. 705, 947 S.W.2d 324 (1997). Accordingly, I would not reach the issue of timeliness of the intervention and consider that discussion in the opinion to be obiter dictum.

Smith, J„ joins.

Annabelle Clinton Imber, Justice,

concurring. I fully agree with the opinion of the majority in this matter. I write separately only to emphasize one issue not fully addressed by the majority opinion.

Appellants premised their motion to intervene in the settlement agreement between the State and the tobacco companies upon what they alleged to be a contractual right to seek fees directly from the tobacco companies. This contractual right, they argue, stems from paragraph 3.D. of the contingency fee contract negotiated between Appellants and the State, which provides:

In order to reduce the amount of attorneys’ fees due Milberg Weiss, Milberg, Weiss will seek to recover the State’s attorneys’ fees and costs to [sic] the defendants pursuant to any applicable fee shifting statutes or legal doctrines in the event the State prevails in litigation. If the State successfully receives such an award of fees and costs from the defendants, any amount awarded shall be deducted from any fees and costs otherwise due Milberg, Weiss pursuant to the contingent fee provisions of this Contract.

Appellants’ reliance upon this provision is misplaced. Assuming for our purposes that the contract is valid, it does not bestow a right upon the Appellants. Rather, it creates an obligation. Appellants have a duty, not a right, under the contract to seek fees from the tobacco companies. The State, to whom the benefit of this obligation would flow, appears to have waived this obligation and relieved Appellants of their duty to seek fees directly from the tobacco companies by choosing not to designate Appellants as outside counsel on Exhibit S to the Master Settlement Agreement. Appellants may disagree with the State’s decision regarding this matter, but no right exists that is subject to impairment by the denial of intervention.

       In addition to the tobacco companies appearing as Appellees herein, the State also filed suit against B. A. T. Industries; Liggett Group, Inc.; Liggett and Myers, Inc.; United States Tobacco Company; Hill and Knowlton, Inc.; the Council for Tobacco Research-U.S.A., Inc.; and the Tobacco Institute, Inc.

         No similar contracts were negotiated or executed between the State and Appellants Niblock and Cauley; rather, the contract negotiated by Milberg-Weiss provided that any fees to local attorneys were to be paid from any fee received by Milberg-Weiss.

       Interestingly, in the January 1, 1999 Democrat-Gazette article, which was attached as an exhibit to one of Appellants’ motions, it is reported that, regarding the lack of notification by the State, “Cauley conceded they should have called the judge’s office or the clerk’s office.: