author: David Newbern, Justice. John I. Purtle, Justice,

text:
    John Michael CALDWELL v. STATE of Arkansas
    CR 87-201
    747 S.W.2d 99
    Supreme Court of Arkansas
    Opinion delivered March 28, 1988

      Shermer & Walker, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, John Michael Caldwell, was convicted of second degree battery for shooting James Roberts. He contends he was entitled to the benefit of a plea bargain from which the state withdrew before trial. He argues he was constitutionally entitled to be indicted rather than proceeded against by information and that the information was invalid because it did not contain the words, “against the peace and dignity of the State of Arkansas” in the right place. He also contends the court erred in not requiring the state to furnish him a transcription of a statement he gave before trial. We hold that, because Caldwell has not demonstrated that he relied on the plea bargain in any way, it was not error to permit the state to withdraw from it. We hold that the constitution is not violated by the information procedure, and that no error occurred with respect to the arrangement of the words of the information. We also hold no prejudice resulted from the failure to furnish the transcription. The conviction is affirmed.

1. Withdrawal from plea bargain

Toward the end of his term of office, the prosecutor offered to recommend a sentence to five years probation in exchange for Caldwell’s plea of guilty to first degree battery and aggravated assault. Caldwell signed the agreement. A new prosecutor took office before Caldwell entered a plea, and the new prosecutor refused to honor the agreement. Caldwell moved to require that the agreement be enforced. The motion was denied. The aggravated assault charge was dismissed, and, upon a plea of not guilty, Caldwell was convicted of second degree battery, a lesser offense included in first degree battery.

As authority for his contention that he was entitled to specific performance of the agreement, Caldwell cites our opinion in Hally v. State, 285 Ark. 38, 684 S.W.2d 261 (1985), in which we said that if the state does not keep a plea bargain, an accused may withdraw his guilty plea, citing Santobello v. New York, 404 U.S. 257 (1971), and Mabry v. Johnson, 467 U.S. 504 (1984). These cases involved alleged breaches of plea bargains which allegedly occurred after a guilty plea had been entered. To be distinguished are cases like this one where no plea has been entered at the time of the withdrawal.

We have no case squarely in point. The cases from other jurisdictions are discussed in Annot., Right of Prosecutor to Withdraw from Plea Bargain Prior to Entry of Plea, 16 A.L.R. 4th 1089 (1982). The majority of jurisdictions which have considered the issue hold that, if the defendant has not pleaded or detrimentally relied upon the agreement, the state is free to withdraw. See, e.g., State v. Edwards, 279 N.W.2d 9 (Iowa 1979), and Wynn v. State, 22 Md. App. 165, 322 A.2d 564 (1974), in both of which withdrawal was allowed, before prejudicial reliance had occurred, where a second prosecutor refused to honor an agreement entered by a predecessor.

Caldwell argues that he relied to his detriment on the agreement, but the closest he comes to saying he was prejudiced is the general statement that upon entry of the agreement he stopped preparing his defense. He makes no specific statement that any preparations were foregone or how his defense may have suffered. We find no facts showing detrimental reliance.

Caldwell also argues that it is fundamentally unfair to allow the state to renege, whether or not he has relied. Some courts might agree. See Cooper v. United States, 594 F.2d 12 (4th Cir. 1979); Ex Parte Yarber, 437 So. 2d 1330 (Ala. 1983). We disagree for two reasons. First, if the trial court chooses not to accept the plea bargain, it is. of no effect. Ark. R. Crim. P. 25.3; Mabry v. Johnson, 467 U.S. 526 (1984). The parties have no power to bind the court, and thus it is illusory to say the state is bound by such an agreement before it is consummated by the acceptance of a guilty plea by the court. Second, this court places substance over form, Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986), and if there is no demonstrable prejudice resulting from the withdrawal we fail to see how it is unfair to allow it.

We do not mean to suggest by this discussion that if an accused has detrimentally relied to any degree or in any manner upon a plea bargain he may have specific performance of it prior to entering a plea based upon it. We will cross that bridge when we come to it. Withdrawal under those circumstances may affect only the evidence available to the prosecution. Here we hold only that absent a showing of acceptance of a plea of guilty based upon agreement and absent a showing of other detrimental reliance upon the agreement, Caldwell was not entitled to enforcement of it.

2. The information

In many cases, including Davis v. State, 246 Ark. 838, 440 S.W.2d 244 (1969), cert. denied, 403 U.S. 954 (1971), and Penton v. State, 194 Ark. 513, 109 S.W.2d 131 (1937), we have upheld Ark. Const., amend. 21, which permits criminal charges to be made by information, against challenges based on the Fifth and Fourteenth Amendments to the United States Constitution. There is no need to reconsider those cases here.

Arkansas Const., art. 7, § 49, provides, in part, “Indictments shall conclude: ‘Against the peace and dignity of the State of Arkansas.’ ” This is known as the contra pacem clause. In Williams v. State, 47 Ark. 230, 1 S.W. 149 (1886); State v. Hazle, 20 Ark. 156 (1859); and State v. Cadle, 19 Ark. 613 (1858), we held that each count of an indictment must contain the clause. Our reason was that each count of an indictment must stand on its own.

Count I of the information against Caldwell stated the battery offense and did not contain the clause. It was, however, contained in the information after the aggravated assault count, which was count II. The clause was not included in the body of either count but was at the conclusion of the printed information form upon which the two counts had been typed. It is apparent to anyone reading the information that the clause was intended to apply to both counts.

When Caldwell’s counsel brought this matter to the attention of the court and the prosecutor, the prosecutor, for reasons we do not know, refused to amend the information to include the required words in count I. The judge remarked that with the dismissal of count II, the clause came at the conclusion of count I. While it would have been easier to decide had the remaining count in the information been expressly amended to include the clause, we agree with the trial court’s conclusion that the dismissal of count II effectively amended the indictment so that count I concluded with the required clause.

3. The statement

Caldwell gave an exculpatory statement to a deputy sheriff shortly after the shooting occurred describing it as accidental. His counsel made a pre-trial motion to require production of any such statement made by Caldwell. There is no doubt that Caldwell was entitled to the statement. Ark. R. Crim. P. 17.1(a)(ii); Williamsons v. State, 263 Ark. 401, 565 S.W.2d 415 (1978). Here again, however, the question is whether he suffered any prejudice by the failure of the prosecution to give him a copy of it.

Caldwell made a pre-trial motion to suppress the statement and was told by the court that the state could use the statement to impeach him if he took the stand. Caldwell’s counsel agreed with the court’s observation, and no objection was raised at that point with respect to failure of the prosecution to produce the statement.

During the trial the state neither introduced the statement nor mentioned it. It was referred to only when Caldwell’s counsel asked the deputy sheriff who had taken the statement about it. Caldwell has not argued that the failure of the state to produce the statement was in any way prejudicial to him, and absent a showing of prejudice we will not reverse. Dunlap v. State, 292 Ark. 51, 728 S.W.2d 155 (1987).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I dissent from that portion of the opinion which holds that criminal charges may be filed by information. I believe Amendment 21 to the Constitution of Arkansas is in direct violation of the Fourth and Fifth Amendments to the Constitution of the United States.


source: Caselaw Access Project

author: Tom Glaze, Justice. Robert H. Dudley, Justice,

license: Public Domain

text:
    William L. INGRAM v. PIRELLI CABLE CORPORATION
    87-280
    747 S.W.2d 103
    Supreme Court of Arkansas
    Opinion delivered March 28, 1988

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

      Wright, Lindsey & Jennings, for appellee.
   Tom Glaze, Justice.

This case presents questions regarding the action of tort of outrage. Specifically, we are asked whether the trial court erred in directing a verdict in favor of the appellee, the appellant’s employer. The court found that the evidence was insufficient to show appellee’s conduct (or that of its agents) rose to the level required to establish an action for tort of outrage or intentional infliction of emotional distress. In viewing the evidence in the light most favorable to the appellant and giving it its highest probative value, we conclude the trial court was correct. Therefore, we affirm.

In March 1980, appellant went to work for appellee as an electrical department manager at a salary of $22,000.00 per year. His employment relationship with appellee could be characterized as good for about three years, having received a promotion to project engineer and an increase in salary sometime in 1982. Appellant’s problems apparently commenced in November 1983, when Mr. Garibay became plant manager. At this time, appellant’s immediate supervisor, Mr. Brennesholtz, informed appellant that the electricians and mechanics whom appellant supervised were no longer allowed to go to the maintenance department where they picked up their new job assignments from appellant. Appellant complained to Brennesholtz that this new policy crippled the operation because appellant had to anticipate when each worker would complete his job and go to him to assign another job. About a month later, Brennesholtz placed some of appellant’s workers, the mechanics, under Mr. Gary Meeks, another department head. Mr. Meeks and other management level employees, apparently were allowed to use telephones to page and manage their workers when making job reassignments. Appellant stated that Garibay had put this telephone policy in effect after appellant returned from performing an engineering project in Abbeyvale, South Carolina, where appellee had another plant; appellant believed Garibay imposed the policy to harrass him, but conceded that he had never spoken with Garibay to determine the reasons the policy was formulated.

During the next ten months, matters grew worse for the appellant. In January 1984, Brennesholtz told appellant and Mr. Meeks to stay an extra hour each day so they could coordinate work, but because no one attended the meetings except appellant, he stopped going. Another problem arose in February 1984, when a machine in the plant broke down and Brennesholtz instructed appellant “to stay all night if necessary to get this machine running.” Appellant refused saying, “I physically couldn’t do it and to back off me.” Appellant returned to work the next day and apparently nothing else was said about that confrontation. Next, in March 1984, appellant was told he was to pick up any messages at the switchboard within five minutes of when they came in and to deliver them to his workers within five minutes. No other department manager was asked to handle messages. And finally, in August 1984, Brennesholtz requested appellant to sign a job description as electrical department manager, and the appellant refused, explaining he was the project engineer. Appellant then asked to see the job description for plant engineer, but Brennesholtz would not respond. Although appellee considered appellant’s position to have reverted to electrical department manager, appellant never received a decrease in pay.

Two other employees for appellee testified, indicating they had knowledge that Garibay and Brennesholtz were putting pressure on appellant. One of the two employees said Brennesholtz voiced concern that appellant might sue appellee if the pressure continued. In October 1984, appellee had a reduction in work force due to economic conditions, and appellant was laid off with others. The plant facility was closed altogether in March 1985, and when notified of the opportunity to discuss employment opportunities at other appellee locations, appellant did not respond.

The foregoing evidence reflects a serious conflict or dispute between appellant and his supervisors, and while we believe the supervisors’ conduct was petty, insulting and less than one might expect from manager level executives of a reputable firm, we cannot agree such conduct was outrageous. In M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980), we first recognized this new tort of outrage or intentional infliction of emotional distress and defined extreme and outrageous conduct as meaning conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.

The Counce case, like the one here, involved the discharge of an employee; but the court rejected any suggestion that Ms. Counce’s discharge, itself, supported an action for intentional infliction of emotional distress. The court further recognized that her employer was not liable for doing that which it had the legal right to do, viz., the employer had the right to terminate her. Id.; see also Restatement (Second) of Torts § 46, at 76 comment g (1965). Cf. Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982) (wherein the employer angrily accused his employee of not working and terminated the employee causing him to lose sleep and weight and to enter the hospital). The Counce court, instead, looked to the employer’s conduct that occurred subsequent to Counce’s discharge, and found that such conduct clearly presented a material issue of fact as to whether the employer’s conduct was extreme and outrageous. That conduct included the employer’s suspecting Ms. Counce of theft, forcing her to take a polygraph test by withholding her pay after she was discharged, continuing to keep her wages after she passed the test and causing her, without a satisfactory basis or reason, to lose her unemployment benefits.

In the instant case, we are faced with an employee who was first laid off and then discharged, which the appellee had a legal right to do. In addition, it is clear the appellee’s supervisors had the authority to establish policies and procedures, and while some of those policies or procedures may have appeared demeaning or insulting to an employee, such conduct by an employer is not the type that gives rise to the level of being outrageous. In other words, liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Restatement (Second) of Torts § 46 comment d (1965).

We said as much in Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W. 2d 312(1984), wherein we stated that our recognition of this new tort should not and does not open the doors of the courts to every slight insult or indignity one must endure in life. There, we clearly stated that the court had taken a somewhat strict approach to this cause of action.

The facts in Bone were similar to those in Counce, except the outrageous conduct giving rise to the employee’s cause of action occurred immediately before his discharge. In sum, Bone’s suit was based on the fact that he was accused of a theft, threatened with arrest and interrogated by company investigators who cursed him and admitted placing him under stress. However, we emphasized that even this conduct would not be outrageous, except the employer knew Bone was under extreme emotional stress at the time; even so, the employer still denied Bone the prescription medicine that he required. One investigator, in fact, slammed a drawer when Bone reached to get his prescription. Based on these facts, we held the evidence was sufficient to support a verdict for outrage. Our holding in Bone is consistent with the view that the extreme and outrageous character of the conduct may arise from the actor’s (employer’s) knowledge that the other (employee) is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know. Restatement (Second) of Torts § 46 comment f (1965).

Thus, the court in Bone recognized the principle announced in Counce, that an employer has the legal right to discharge an employee who is terminable at will; but, even so, the court contemporaneously sensitized the employer and tempered the employer’s conduct in such matters when that employer possesses knowledge that the employee is peculiarly susceptible to emotional distress, whether from physical or mental origin.

From the record before us, we find nothing that reflects the appellee or its supervisors, Garibay or Brennesholtz, had knowledge that appellant was peculiarly susceptible of emotional stress. Appellant’s own psychologist, who examined and tested him months after he left appellee’s employment, testified that appellant revealed no identifiable mental, emotional or behavioral disorder. Although appellant and his wife related that he had experienced stress, chest pains and sleepless nights when dealing with the pressures foisted upon him by his supervisors, there is nothing in the record that shows he informed appellee of these stress-related problems. Even if he had, we doubt that, under the circumstances of this case, the appellee’s conduct could be described as outrageous.

In conclusion, we mention our most recent case of Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), which was decided after the parties herein filed their briefs. We need not discuss the facts in detail but do note that the circumstances favoring the employee’s outrage claim there were much stronger than those imposed here. Nonetheless, we rejected the employee’s claim, holding the employer’s conduct failed to support a verdict for outrage. That conduct involved the employer’s officers putting pressure on the employee which eventually led to his demotion and decision to leave his employment. Apparently, believing the employee reported the company for pricing violations, the officers took actions designed to set up the employee in order to terminate him.

In Oxford, we made it clear that an employer’s conduct must be sufficiently egregious or extreme before the standard is met for an outrage cause of action. Obviously, the type conduct that meets that standard, first announced in Counce in 1980, must necessarily be decided on a case-by-case basis. While the court has taken a strict view in recognizing an outrage claim, especially in employment relationship situations, we also have said that an employer should not have an absolute and unfettered right to terminate an employee. Accordingly, we held in Oxford that an at-will employee has a cause of action for wrongful discharge if he or she is fired in violation of a well-established public policy of the state.

In the instant case, we need only address the issue as to whether the appellee’s conduct was outrageous since no wrongful discharge claim is before us. Thus, because we find no merit in appellant’s claim for outrage, we affirm.

Purtle and Dudley, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. The trial court directed a verdict against the plaintiff-employee, ruling that the conduct of the defendant-employer (a) was not sufficiently egregious to constitute the tort of outrage, and (b) that the appellant did not suffer severe emotional distress. The majority affirms on both points. I dissent on both points.

The rules of appellate review are very important in this case. The first of those rules is that in reviewing the granting of a directed verdict we are required to examine the evidence, including all reasonable inferences, in a light most favorable to the non-moving party. Stalter v. Coca-Cola Bottling Co., 282 Ark. 443, 445, 669 S. W.2d 460, 462 (1984). Sometimes we state the rule as “on appeal the evidence of the party against whom a motion for a directed verdict is granted will be given its highest and strongest probative value, with all reasonable inferences allowable.” Nunley v. Orrell, 282 Ark. 593, 593, 670 S.W.2d 425, 425 (1984).

In reviewing the evidence with the above rule of review in mind, it becomes clear that six key facts were developed: (1) In March, 1980, the appellee hired appellant as a manager of the electrical department of the Pirelli Cable Corporation’s Hot Springs factory. In March, 1982, he was promoted to project engineer for the factory. (2) Although the plant building was one-quarter of a mile long and covered three levels, he was required in 1983 to give out work assignments in the presence of his employees. Unlike the other supervisory personnel, he was not allowed to give out the assignments by telephone or to have the crews report to his office. (3) In January, 1984, he was told by his supervisor that he had to work 10 hours a day, seven days a week, and that the purpose was harassment. For the next few weeks he was required to attend a “meeting” during the tenth hour of each day. No one else would be at the “meeting,” but he was required to stay there for the full hour. He was again told this was for the purpose of harassment. (4) In February, 1984, a machine in the factory sat in an inoperable condition, and there were no parts available to fix it. He was ordered to stay at the factory all night and fix the machine. (5) In the final act of harassment he was asked by his supervisor to sign a statement which provided that his position was lower than it was. (6) Throughout the year and one-half of harassment, he suffered from emotional distress and, as a direct result, had various problems such as chest pains and insomnia.

The next applicable rule of appellate review which must be considered is the rule which provides that if the above stated facts constitute substantial evidence of the tort of outrage, then it was error to take the case from the jury. Ikani v. Bennett, 284 Ark. 409, 410, 682 S.W.2d 747, 748 (1985). Accordingly, we must next examine our cases to determine whether these facts fit within the tort of outrage.

We first recognized the tort of outrage in M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). We said, “[W]e can and do now recognize that one who by extreme and outrageous conduct wilfully and wantonly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress.” Id. at 280, 596 S.W.2d at 687. However, we took care to note that to be tortious a high level of outrageousness is required: “By extreme and outrageous conduct, we mean conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Id.

In Counce, the plaintiff was fired and the employer deducted $36.00 from her final paycheck to cover missing money, despite the fact that the plaintiff denied stealing the money and was shown to be telling the truth by a polygraph machine. In a proceeding comparable to the case at bar, we reversed the lower court’s summary judgment against the plaintiff, holding, “We have no hesitation in saying there was a material issue of fact as to whether [the employer’s] conduct was extreme and outrageous.” Id. at 281, 596 S.W.2d at 688.

The facts of this case, when viewed most favorably to the appellant, show extreme harassment pursued over the period of a year and one-half. That is more egregious than was the simple withholding of $36.00 in the Counce case. Since we held there was a material issue of fact as to whether the employer’s conduct was extreme and outrageous in the Counce case, and since this case is even more egregious, we should hold there is a material issue of fact in this case.

Next, the facts, as tested under the rules of appellate review, establish that the appellant felt humiliated, suffered from stress, and, as a result, had physical problems such as chest pain and insomnia. Thus, there was sufficient testimony to avoid a directed verdict on the issue of emotional distress because the motion should be granted only when the proof would not support a verdict. Nunley v. Orrell, 282 Ark. 593, 670 S.W.2d 425 (1984).

Purtle, J., joins in this dissent.

       The psychologist did testify that, by evaluating appellant’s job and medical history and through other quantitative analyses, he was of the opinion that appellant had been under considerable stress from his job during 1983 and 1984.


author: Tom Glaze, Justice.

text:
    Kathy YORK v. STATE of Arkansas
    CR 87-207
    747 S.W.2d 102
    Supreme Court of Arkansas
    Opinion delivered March 28, 1988

      Hickam & Williams, P.A., by: Lynn Williams, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This appeal is from the trial court’s denial of appellant’s Rule 37 petition. The sole issue on appeal is whether the trial court was correct in finding that the appellant’s Rule 37 petition was untimely filed. We find no error and therefore affirm.

On November 18,1982, the appellant was found guilty of first-degree murder and sentenced to life imprisonment. She did not appeal her conviction. Appellant filed a petition for post-conviction relief pursuant to A.R.Cr.P. Rule 37 on June 11,1987, more than four years from the date of her commitment. Rule 37.2(c) provides that a timely petition must be filed within three years of the date of commitment, unless the ground for relief would render the judgment of conviction absolutely void. Appellant in her complaint alleges several grounds for Rule 37 relief, but in this appeal she argues only that her claim of ineffective assistance of counsel is sufficient to void her conviction. Her main complaint against her attorney was his inexperience because her case was his first murder trial.

A ground sufficient to void a conviction must be one so basic that the judgment is a complete nullity. Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987) (per curiam). This court has recognized that a judgment obtained in a court without jurisdiction to try the accused and a judgment obtained in violation of the provisions against double jeopardy are sufficient grounds to void a conviction. Travis v. State, 286 Ark. 26, 688 S.W.2d 26 (1985). Here, the appellant failed to timely file her Rule 37 petition, and now the burden is on her to demonstrate that the judgment entered is a nullity. See id.

This court has recently refused to recognize ineffective assistance of counsel, for failing to seek the dismissal of charges that had been nol prossed and not refiled within one year, as a ground of relief that voided a conviction. Williams, 293 Ark. 73, 732 S.W.2d 456. In Williams, we were addressing a petition for Rule 37 relief filed more than nine years after the conviction, and this court upheld the trial court’s finding that the petition was untimely filed. In the present case, appellant’s complaint of the inexperience of her counsel is clearly not a sufficient ground to void her conviction. Accordingly, we must find that the trial court correctly concluded that the appellant’s petition for post-conviction relief was untimely filed under Rule 37.2(c).


author: Per Curiam.

text:
    John L. LEWIS v. STATE of Arkansas
    RC 88-7
    747 S.W.2d 91
    Supreme Court of Arkansas
    Opinion delivered March 28, 1988

      G. B. “Bing” Colvin III, for appellant.
    No response.
   Per Curiam.

Appellant’s attorney of record, G. B. “Bing” Colvin III, has filed on behalf of appellant a motion for rule on the clerk by which he requests that this court find Colvin’s failure to timely file the record resulted from unavoidable error or excusable neglect.

Appellant, John L. Lewis, was convicted on July 28, 1987, and the order for entry of judgment and commitment was filed on July 29. Notice of appeal was filed on August 14, and an order extending for seven months the time for filing the record was entered on November 12.

Rule 5 of the Arkansas Rules of Appellate Procedure provides that the record on appeal shall be filed with the clerk of this court within 90 days of the notice of appeal unless the trial court grants an extension. The order of extension must, however, be entered before the expiration of the 90 day period, and, with exceptions not applicable here, in no event shall the time be extended more than seven months from the date of the entry of the judgment. As such, the record would have been due no later than February 29, 1988.

Colvin’s primary contention is that he relied on both oral and written representations by the Clerk of the Desha Circuit Court that the seven month time period ran from the date of notice of appeal and not the date of entry of judgment. We have repeatedly held that the attorney is responsible for filing the record and cannot shift that responsibility to the trial judge or to the court reporter or, in this case, to the clerk of the lower court. Forrest v. State, 286 Ark. 165, 690 S.W.2d 1 (1985); Christopher v. Jones, 271 Ark. 911, 611 S.W.2d 521 (1981). Under the circumstances presented here, we will not permit the record to be filed unless the attorney assumes full responsibility for presenting it late. Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). A statement that it was someone else’s fault or no one’s fault will not suffice. Moore v. State, 268 Ark. 191, 609 S.W.2d 894 (1980).

If appellant’s attorney files a motion and affidavit in this case accepting full responsibility for not perfecting the appeal and admits that the record was tendered late due to a miscalculation of the seven-month maximum limit for filing the record, then the motion will be granted. McKimm v. State, 294 Ark. 208, 742 S.W.2d 114 (1988); Robbins v. State, 287 Ark. 199, 697 S.W.2d 118 (1985); Gibson v. State, 272 Ark. 345, 614 S.W.2d 234 (1981). The attorney’s negligence will be duly noted, and a copy of the opinion granting the motion will be forwarded to the Committee on Professional Conduct.


text:
    David QUIGLEY v. STATE of Arkansas
    RC 88-6
    747 S.W.2d 92
    Supreme Court of Arkansas
    Opinion delivered March 28, 1988

      David M. Clark, for appellant.
    No response.
   Per Curiam.

Petitioner, David Quigley, by his attorney, David M. Clark, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to his miscalculation of the ninety-day limit for filing the record in this court. See Ark. R. App. P. 5(a).

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

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In re: Belated Appeals in Criminal Cases, 265 Ark. 964.


author: Jack Holt, Jr., Chief Justice.

text:
    Hazel G. QUICK v. Charles WOODY, et al.
    88-39
    747 S.W.2d 108
    Supreme Court of Arkansas
    Opinion delivered April 4, 1988

      Barron & Coleman, P.A., by: Keith I. Billingsley, for appellant.

      Mitchell, Williams, Selig & Tucker, by: John C. Lessell, for appellees.
   Jack Holt, Jr., Chief Justice.

This case involves the interpretation of Ark. Code Ann. § 23-42-106(c) (1987), formerly Ark. Stat. Ann. § 67-1256(b) (Repl. 1980), which subjects an agent who materially aids in the sale of unregistered, nonexempted securities to civil liability. Jurisdiction is pursuant to Ark. Sup. Ct. R. 29(l)(c).

On March 6, 1984, the appellees, Charles Woody, Charles Edward Woody, Larry Joe Woody, Ricky Don Woody, William F. Woody, Eddie Jones, and Lucille Shelton filed suit against Quick Oil Company; Trans world Petroleum, Inc., a subsidiary of Quick Oil Company; J. Gary Nolan Quick II, owner and operator of both companies; and Hazel G. Quick, Gary Quick’s mother and the sole appellant in this appeal, seeking rescission of the sale and purchase of securities representing various interests in three oil and gas wells, recovery of their invested monies, interest, costs, and reasonable attorneys’ fees on the basis that the securities sold were not registered in Arkansas as required by the Arkansas Securities Act, Ark. Code Ann. §§ 23-42-101—23-42-508 (1987), formerly Ark. Stat. Ann. §§ 67-1235—67-1264.14 (Repl. 1980). A consent judgment was entered against all defendants except Hazel Quick for $33,810.00, plus interest, costs, and attorneys’ fees.

Subsequently, the appellees proceeded to trial against the remaining defendant, Hazel Quick. The trial court held that she, acting as an agent of the defendants, materially aided in the sale of unregistered securities to the appellees. The trial court found for the plaintiff-appellees and awarded $14, 490.00 collectively to Charles Edward Woody, Larry Joe Woody, Ricky Don Woody, and William F. Woody; $4,830.00 to Charles Woody; $4,830.00 to Eddie Jones; and $4,830.00 to Lucille Shelton; plus interest, but denied their request for costs and attorneys’ fees. In addition, it denied Charles Woody relief with respect to securities he purchased on December 20,1980. Hazel Quick filed a motion for a new trial, which was denied. She now appeals. We agree with the trial court’s holding and affirm.

On cross-appeal the appellees challenge the portions of the trial court’s judgment that (a) deny Charles Woody relief with respect to securities purchased on December 20, 1980, and (b) deny the appellees’ request for costs and attorneys’ fees. We also affirm the trial court on the cross-appeal.

The material facts in this case are as follows: In June of 1980, Gary Quick, an Oklahoma resident, Quick Oil Co., and Trans-world Petroleum, Inc. began offering for sale fractional undivided working interests in an oil and gas well project in Navarro County, Texas. The appellees, Arkansas residents and eventual investors in the project, initially obtained information about the investment opportunity either at an August 1980 promotional meeting in Little Rock at which Hazel Quick, also an Arkansas resident, participated or by virtue of her direct or indirect dissemination of information about the project. At trial both Hazel and Gary Quick disputed the fact that the meeting took place in August contending it was held in November, after the purchase of securities by the appellees, to answer questions concerning the venture. The record does reflect that the appellees sent their checks to Quick Oil in August 1980 and that they have not received any return on their investments.

Karen Woody, wife of appellee Larry Joe Woody, testified that the promotional meeting was held at Jan and Charles Edward Woody’s house in August of 1980 to discuss the oil and gas venture with potential investors. According to Karen Woody, all of the named plaintiffs-appellees were present at the meeting. (Eddie Jones later testified that he was not present.) She also stated that during Gary Quick’s presentation, Hazel Quick interrupted him numerous times with comments about what to expect in investing and also made the statement that “if we [the appellees] knew of anyone that was interested, that they [Hazel and Gary] were still looking for investors and to be sure and let them know.” Additionally, Karen Woody asserted that Hazel Quick handed out business cards to the appellees while, at the same time, stating that if they came across anyone interested in investing, let her know. A business card that stated “TransDelta Gas and Oil Company, Inc. [Hazel Quick’s son-in-law’s company], Hazel Quick Arkansas Regional Manager,” was later admitted at trial to impeach Hazel Quick’s testimony that she had no knowledge of oil and gas affairs. Karen Woody and Larry Joe Woody, her husband, sent a check to Quick Oil on August 26, 1980.

Lucille Shelton, Hazel Quick’s cousin and Jan Woody’s mother, testified at trial that Hazel Quick met with her at Shelton’s office concerning the oil and gas investment, encouraged her to invest, and sent or gave her a prospectus explaining the investment, which had a written notation on its face, “Remit to Hazel Quick.” Shelton also attended the meeting held at her daughter’s house, and sent her check to Quick Oil on August 26,1980. Shelton further testified that it was Hazel who must have instigated communications about the meeting. However, Hazel Quick denied that she arranged the meeting.

Eddie Jones testified that while he and his wife were attending a church reunion in August 1980, Hazel Quick talked to him concerning the investment and accepted his check, upon which she filled in Quick Oil as payee. Quick Oil later received this check. He also stated that Hazel Quick was the only person he talked to directly about the investment and that she indicated to him that she was handling Gary Quick’s interest in Arkansas. Lavérne Jones, Eddie Jones’ wife and Hazel Quick’s cousin, testified that Hazel Quick convinced her husband to invest.

Charles Woody testified that he made his initial purchase of securities after attending the meeting and that he did not talk to Gary Quick before making his investment. However, he did communicate with Gary Quick in December of 1980, after which he purchased additional securities.

Gary Quick testified that he sold the appellees securities through telephone communications before the meeting. However, both Charles Woody and Eddie Jones asserted that they had no telephone communications with Gary prior to investing in August of 1980.

Hazel Quick contends that the trial court erred in finding that she participated as an agent of the seller and materially aided in the sale of the securities. We disagree.

This matter was tried before the court without benefit of a jury. In such cases, the findings of the trial court shall not be set aside unless clearly against the preponderance of the evidence. Burdette v. Madison, 290 Ark. 315, 719 S.W.2d 418 (1986). Furthermore, we give due regard to the trial court’s superior ability to determine the credibility of the witnesses and the weight to be given their testimony. Id.

Ark. Code Ann. § 23-42-106(c) (1987) provides in pertinent part as follows:

[E]very broker-dealer or agent who materially aids in the sale [of an unregistered, nonexempted security] are [sic] liable jointly and severally with, and to the same extent as the seller or purchaser [This liability is for the consideration that the purchaser paid for the security, together with interest at six percent (6%) per year from the date of payment, costs, and reasonable attorneys’ fees, less the amount of any income received on the security, upon the tender of the security and any income received on it, or for damages if he no longer owns the security. Ark. Code Ann. § 23-42-106(a)(1).], unless the nonseller or nonpurchaser who is so liable sustains the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist. There is contribution as in cases of contract among the several persons so liable.

Ark. Code Ann. § 23-42-102(2) (Supp. 1987), formerly Ark. Stat. Ann. § 67-1247(b) (Repl. 1980), defines “agent” as “any individual, other than a broker-dealer, who represents a broker-dealer or issuer in effecting or attempting to effect the purchases or sales of securities.” Ark. Code Ann. § 23-42-102(8)(D) (Supp. 1987), formerly Ark. Stat. Ann. § 67-1247(g) (Repl. 1980), states that “[w]ith respect to fractional undivided interests in oil, gas, or other mineral rights, the term ‘issuer’ means the owner of the right or of any whole or fractional interest in the right who creates fractional interests therein for the purpose of the offering.”

There are no Arkansas cases interpreting the term “agent” under §§ 23-42-102(2) and 23-42-106(c). We must, therefore, examine Hazel Quick’s conduct in light of a plain reading of the language of the statutes. There is evidence in the record that Hazel Quick aided in arranging a meeting of potential investors. As previously noted in Karen Woody’s testimony, Hazel Quick actively participated in the meeting by interrupting Gary with comments about what to expect in investing, handing out business cards to the appellees, and stating to them that if they knew of anyone interested in investing, to let them [Hazel and Gary] know. (Hazel Quick later denied that she had any knowledge of securities.)

Hazel Quick also promoted the sale of her son’s securities in her direct dealings with Eddie Jones. After talking with Mr. Jones about the investment opportunity at a church reunion, Hazel Quick accepted a check that he wrote for his interest in the project, filled in Quick Oil as payee, and forwarded the check to Quick Oil. As noted above, Mr. Jones also testified that Hazel Quick indicated to him that she was handling Gary Quick’s interest in Arkansas.

On the basis of the foregoing facts, we conclude that Hazel Quick represented an issuer (Gary Quick, Quick Oil Co., or Transworld Petroleum, Inc.) in effecting or attempting to effect purchases or sales of securities to the appellees and therefore is an agent under the Arkansas Securities Act. Although Gary Quick testified he neither employed nor asked her to solicit purchasers, it is apparent that he was aware of her promotional activities and did not attempt to curtail them. Furthermore, he acquiesced in or ratified her conduct by accepting the check from Eddie Jones.

Having found that Hazel Quick was an agent, we must determine if she materially aided in the sale of unregistered securities for liability to attach. The language of § 23-42-106(c), “materially aids in the sale of securities,” is not defined in the Arkansas Securities Act. However, in Titan Oil and Gas v. Shipley, 257 Ark. 278, 517 S.W.2d 210 (1974), we did interpret this language, which was then found in Ark. Stat. Ann. § 67-1256(b) (Repl. 1966). Although neither the appellant nor the appellee cited this case, its treatment of the statutory language is essential to our present analysis.

In Titan Oil, a representative of a company offering securities in an oil and gas project gave two investors a prospectus concerning the project and invited them to a meeting in which individuals other than the representative spoke and presented investment material. We held that the trial court’s finding that the representative did not materially aid in the sale of securities was not clearly against the preponderance of the evidence.

In examining Hazel Quick’s participation in the sale of securities to the appellees in light of Titan Oil, we quickly find that her activities fully support the trial court’s finding that she materially aided in the sale of her son’s securities. Hazel Quick convinced Eddie Jones to invest in the venture at a church reunion, accepted his check, upon which she filled in Quick Oil as payee, and forwarded it to Quick Oil. Hazel Quick met with Lucille Shelton at Shelton’s office to discuss the investment, encouraged her to invest, and sent or gave her a prospectus explaining the investment, which had a written notation on its face, “Remit to Hazel Quick.” According to Karen Woody, appellees Lucille Shelton, Charles Woody, Larry Joe Woody, Charles Edward Woody, Ricky Don Woody, and William F. Woody all attended the investment meeting, arranged at least in part by Hazel Quick, at which Hazel Quick actively participated by telling the investors what to expect in investing, handing out business cards to them, and stating that if they knew of anyone interested in investing, to let them [Hazel and Gary] know. Based upon these facts, we cannot say that the trial court’s finding was clearly against the preponderance of the evidence. She is liable to the appellees for a refund of their investments plus interest.

In affirming the trial court, we should note that § 23-42-106(c) allows an agent who has materially aided in the sale of unregistered, nonexempted securities to avoid liability if he proves that “he did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist.” In the instant case, Hazel Quick did not specifically contend either below or on appeal that she did not know, and in the exercise of reasonable care could not have known, that the securities were unregistered and nonexempted. Accordingly, we do not address this issue. See Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988).

On cross-appeal, the appellees contend that the trial court erred in failing to award Charles Woody relief for the additional securities he purchased December 20,1980, through contact with Gary Quick. We disagree.

Granted, it is doubtful that Charles Woody would have known of this investment opportunity absent Hazel Quick’s initial dissemination of information and encouragement to invest. However, there is no indication that Hazel Quick encouraged or solicited this second investment, nor was it purchased as a result of her influence. For this reason, he is not entitled to relief.

Appellees also cross-appeal the trial court’s refusal to award them attorneys’ fees and costs. As noted above, Ark. Code Ann. § 23-42-106(a)(1) provides that any person who offers or sells unregistered, nonexempted securities is liable to the purchaser for costs and reasonable attorneys’ fees in addition to the consideration paid for the securities and interest. The appellees included a prayer for costs and attorneys’ fees in their complaint, but did not put on evidence at trial to establish the amount of such fees. The trial court denied their request on the ground that the appellees failed to sufficiently establish the fees and costs. Based upon the trial court’s finding, we conclude that it did not abuse its discretion in this matter. It was the appellees’ obligation to put on testimony as to costs and reasonable attorneys’ fees.

Affirmed on appeal and cross-appeal.


author: Darrell Hickman, Justice.

text:
    BAR S BAR WESTERN STORE v. Phillip R. MARTIN, et al.
    87-283
    747 S.W.2d 113
    Supreme Court of Arkansas
    Opinion delivered April 4, 1988
    [Rehearing denied May 2, 1988.]

      Gean, Gean & Gean, by: Lawrence W. Fitting, for appellant.

      Warner & Smith, by: Wayne Harris, for appellee.
   Darrell Hickman, Justice.

This is a negligence suit over carpet damaged when a vehicle, driven by an employee of the appellee, ran into a store operated by the appellant. The accident occurred in June of 1981. The appellee does not deny liability for the damages. The case was tried before a judge. The judge dismissed the case, because it was brought in the name of the wrong party, the tenant, and not the name of the owner of the building. We affirm.

Fred and Patty Sullivan own the land and building where the store is located. They formed a corporation, the appellant, to operate the store. The corporation leased the building from the Sullivans as individuals. After the accident the appellee paid for the repairs to the building and for any loss of business suffered by the appellant. However, the appellant wanted the carpet in the entire store replaced even though only a small area of the carpet had been damaged. After suit was filed, it was discovered through a deposition that the appellant corporation did not own the building. The appellee filed a motion for summary judgment alleging the real party in interest was the Sullivans, who owned the building, and that the statute of limitations barred their recovery. The judge denied the motion, because there was a fact question since the appellant corporation alleged it had an oral agreement to maintain the premises and make repairs to the building, which would include the damaged carpet.

At the trial the judge found no oral agreement, the statute of limitation had run, and dismissed the case.

Rule 17 of ARCP provides that only a real party in interest may bring a cause of action. That party is generally considered that person “who can discharge the claim on which suit is brought, and not necessarily the person ultimately entitled to the benefit of recovery.” Childs v. Philpot, 253 Ark. 589, 487 S.W.2d 637 (1972).

Generally, a tenant is under no obligation to repair damages caused by third parties over whom he had no control. 49 Am. Jur. 2d Landlord and Tenant § 923 (1970). A landlord may recover for an injury which permanently depreciates or damages his property while a tenant may recover for damage to his business and loss of profits. Carson v. Hercules Powder Co., 240 Ark. 887, 402 S.W.2d 640 (1966).

We cannot say the trial court was clearly wrong in this case in deciding that only the landlord could recover for replacement or repair of the carpet. The tenant had already recovered for its damages. No other issue was raised below.

The appellant makes the additional argument that the appellee waited too long to raise the issue that the appellant was not the real party in interest. That argument was not made to the trial court, and we do not consider it on appeal. Mitchell v. First Nat’l Bank in Stuttgart, 293 Ark. 558, 739 S.W.2d 682 (1987).

Affirmed.


text:
    Phillip Michael WHEAT v. STATE of Arkansas
    CR 87-195
    747 S.W.2d 112
    Supreme Court of Arkansas
    Opinion delivered April 4, 1988

      Clinton Keith Jones, Jr., Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by; Paul L. Cherry, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

The only issue in this case is whether the reference by a police officer to “mugshots” used in a photographic lineup improperly told the jury the appellant had a prior criminal record. The trial judge denied a motion for a mistrial, and we affirm that decision.

The officer did not testify that he used a “mugshot” of the appellant in the photographic lineup; he was asked;

Q. Can you tell us, basically, what a photographic lineup looks like?
A. Yes, sir. We pull mugshots from our files, uh, based on the general uh, close to the same facial features, same age—

The appellant objected to the use of the word “mugshot.” Later the police officer said that “Detective Helder provided me with the photograph of Phillip Wheat,” which indicates that the photograph of the appellant was not a mugshot. The appellant must show prejudice before we will reverse a decision. Berna v. State, 282 Ark. 563, 670 S.W.2d 435 (1984).

“A mistrial is an exceptional remedy to be used only where any possible prejudice cannot be removed by an admonition to the jury.” Free v. State, 292 Ark. 65, 732 S.W.2d 452 (1987). The appellant did not even request an admonition in this case. See Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980).

Having failed to show prejudice, we find the trial judge did not commit error.

Affirmed.


author: John I. Purtle, Justice.

text:
    BRYAN FARMS, INC. v. STATE of Arkansas ex rel Arkansas Department of Parks & Tourism
    87-320
    747 S.W.2d 115
    Supreme Court of Arkansas
    Opinion delivered April 4, 1988

      Henry Swift and H. David Blair, for appellant.

      Steve Clark, Att’y Gen., by: Jeffrey A. Bell, Deputy Att’y Gen., and Tim Humphries, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

This is an appeal pursuant to ARCP Rule 54(b) on an interlocutory order permitting the State of Arkansas ex rel Arkansas Department of Parks and Tourism to abandon condemnation proceedings more than two years after starting the proceedings. The only point argued for reversal is that the trial court erred in allowing the appellee to abandon the condemnation proceedings after title to the condemned property had passed to the state. Although certified to us by the trial court, the order appealed from is not an appealable order pursuant to ARCP Rule 54(b). The appeal is therefore dismissed.

Rule 54(b) reads as follows:

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

There was no final j udgment as to one or more but fewer than all of the claims or parties. See Murry v. State Farm Mutual Auto Ins., 291 Ark. 445, 725 S.W.2d 571 (1987). By the express terms of the order appealed from, the matters of appropriate damages, attorney fees and costs are yet to be determined by the trial court. The case is therefore not ripe for appeal.

Appeal dismissed.


text:
    Joe S. HORNE, Jr. and Angela Kate Horne v. SAVERS FEDERAL SAVINGS AND LOAN ASSOCIATION
    87-260
    747 S.W.2d 580
    Supreme Court of Arkansas
    Opinion delivered April 4, 1988

      Hale, Ward, Young, Green, Nixon, Jacobs & Hickey, by: Ann P. Faitz, for appellants.

      Mitchell, Williams, Selig & Tucker, by: Marcella J. Taylor, for appellee.
   Tom Glaze, Justice.

This case involves a foreclosure action brought by appellee on a note and second mortgage signed on June 6, 1984, by appellants, Joe and Angela Horne. The appellants defaulted on their note in May 1985. After unsuccessfully attempting to locate the appellants’ whereabouts, the appellee, on October 29, 1985, filed suit against the appellants, Union National Bank (the Bank) and Mr. and Mrs. William S. Moore. The Bank held a deed of trust signed by the appellants, and the deed was prior in time to the mortgage held by appellee. The Moores were tenants who rented the subject property from the appellants at the time the appellee filed this foreclosure action.

Upon filing suit, appellee’s counsel, Tim Grooms, filed an affidavit reflecting that he had made diligent inquiry as to the appellants’ whereabouts, specifying he had done so by contacting the appellants’ attorney, Gary Green, their tenants, the Moores, and appellant Joe Horne’s father, Joe S. Horne, Sr. These persons who were contacted were either unable to disclose where the appellants were or refused to reveal their whereabouts. Service was had upon the appellants by warning order duly published in the newspaper for two weeks. Appellee’s counsel then mailed a complaint and summons, by certified receipt restricted delivery, to each of the named defendants in the action, including Joe Horne, Sr., at their last known address.

While the suit was pending, Mr. Green, appellants’ attorney, notified the appellee that appellants had authorized him to offer a deed in lieu of any foreclosure and a $5,000.00 deficiency judgment. Appellee rejected that offer. Appellee continued to try to locate appellants’ whereabouts by taking Mr. Horne, Sr.’s deposition, wherein he said his son and daughter-in-law were in Spain; he denied knowing their address or telephone number. Mr. Horne, Sr. conceded that his son was aware that suit had been filed against him and his wife.

On February 24,1986, appellee filed its affidavit of service in this action, listing the services had on each defendant, and stating that the appellants’ complaint and summons had been returned unclaimed. On October 15, 1986, Mr. Green executed an affidavit reflecting the appellants had not authorized him to accept service in this action, but, on October 17,1986, Green and his law firm filed a motion requesting that appellee’s foreclosure action against appellants be dismissed for insufficiency of service of process and a lack of in personam jurisdiction. On November 19, 1986, the chancellor entered an order denying appellants’ motion; he found that the court had personal jurisdiction over . appellants under Arkansas’s long-arm statute and proper service of process was had pursuant to ARCP Rule 4(f). After denying appellants’ request for rehearing, the chancellor entered a foreclosure decree against appellants on January 13, 1987, and appellants brought this appeal.

First, we find no merit whatever in appellants’ claim that the trial court had no in personam jurisdiction so as to award a personal judgment against them. In this respect, the court in pertinent part (1) determined it had personal jurisdiction over appellants by virtue of Arkansas’s long-arm statute, Ark. Code Ann. § 16-4-101 (C)(1)(e) (1987), (2) adjudged that appellants owed the appellee $123, 946.87, plus interest and other costs and attorneys’ fees, (3) provided that the property subject to the Bank’s and appellee’s mortgages be sold, and (4) ordered that the appellee receive a deficiency judgment for any amount which may be owed after the sale proceeds are distributed. Section 16-4-101(C)(1)(e), cited by the trial court, provides, among other things, that a court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from one person’s having an interest in, using, or possessing real property in this state.

This court’s decision in Bowsher v. Digby, Judge, 243 Ark. 799, 422 S.W.2d 671 (1968), is controlling and clearly supports the chancellor’s holding that appellants were subject to the personal jurisdiction of the court. See also Ratliff v. Thompson, 267 Ark. 349, 590 S.W.2d 291 (1979), (court, citing Bowsher and construing long-arm statute, held that the Arkansas court had personal jurisdiction over a non-resident who had executed a contract to purchase Arkansas land that subsequently became subject to a foreclosure suit). In Bowsher, this court construed and upheld the constitutionality of the same long-arm provision [then Ark. Stat. Ann. § 27-2502(C)(1)(e) (Supp. 1965)] that is in issue here. In that case, the trial court had to determine whether the Pulaski Circuit Court had personal jurisdiction of Bowsher, a non-resident defendant who owned property lying in Pulaski and Perry Counties. Bowsher had authorized, by writing, a Little Rock real estate firm to sell the property, but later he violated that agreement and sold it himself. The court upheld the Pulaski County court’s exercise of personal jurisdiction over Bowsher, stating:

[Petitioner owns real estate in this state. He depends on the laws and courts of Arkansas for protection of this property and his rights therein. He allegedly entered into a contract relating to this particular property. Arkansas has an interest in providing an effective means of redress for its residents against persons or corporations outside the state who allegedly have violated a contract relating to this realty.

The facts here are even more compelling than those in Bowsher in deciding that our Arkansas courts have personal jurisdiction over the appellants. The appellants not only own the Arkansas property that is the subject of this foreclosure, but also they lived on the property when they negotiated and consummated the now defaulted loan, which is the basis of this suit.

Appellants next challenge the chancellor’s decision that appellee’s service of process under ARCP Rule 4(f) was legally sufficient to give the Arkansas court in personam jurisdiction over them. Again, the appellants are wrong. In Smith v. Edwards, 279 Ark. 79, 648 S.W.2d 482 (1983), we considered the use of Rule 4(f) and the service of process procedures thereunder in giving an Arkansas court in personam jurisdiction over a non-resident defendant whose whereabouts was unknown. There, a woman was killed in an accident while riding as a passenger in a car driven by Conrad Smith. Dale Edwards was the driver of the other car involved in the collision. The deceased woman’s estate sued Smith who filed a cross-complaint against Edwards, who had moved to Missouri. Smith attempted to obtain constructive service of Edwards under Rule 4(f), and when Edwards learned of the cross-complaint, he moved to dismiss, alleging improper service of process. This court upheld the trial court’s dismissal of Smith’s cross-complaint, but did so because Smith had failed to meet the requirements of Rule 4(f) when trying to perfect service. On this point, we recited Comment 12 to Rule 4 as follows:

The burden is on the party attempting service by publication to attempt to locate the missing or unknown defendant. Such party or his attorney is required to demonstrate to the court, by affidavit or otherwise, that after diligent inquiry, the defendant’s identity or whereabouts remains unknown. (Emphasis added.)

Id. at 82, 648 S.W.2d at 484.

In considering the requirements of Rule 4(f), we found that the record reflected that Smith could have easily discovered Edward’s whereabouts, but he had failed to utilize the available information to locate Edwards and to give him actual notice. That, of course, is not the situation here. Appellee’s counsel was meticulous in his efforts not only to locate the appellants but also to document those efforts, in order to demonstrate how he had tried to give the appellants actual notice of the foreclosure suit filed against them. In fact, appellant Joe Horne’s father testified he was sure the appellants did know of the suit. Appellants’ knowledge of the pending action was further borne out by their attorney’s offer, made shortly after the suit was filed, to settle the dispute with the appellee.

In sum, the record reflects the appellee contacted the appellants’ attorney, their tenants and Mr. Joe Horne, Sr. The attorney and Joe Horne, Sr. knew the appellants were in Spain and both were in contact with them; nevertheless, they still denied knowledge of, or refused to disclose, the appellants’ whereabouts. After many efforts to locate the appellants, the appellee obtained constructive service by publication and by sending appellants a copy of the complaint and summons to their last known address. Unquestionably, the appellee demonstrated that it had made diligent inquiry of appellants’ whereabouts.

Under the circumstances demonstrated here, appellee was denied in its efforts to give appellants actual or personal service provided for out-of-state persons under the methods set forth under Ark. Code Ann. § 16-4-102(A)(1) (1987) and ARCP Rule 4(e). As a consequence, appellee was relegated to obtain service of process on appellants under Rule 4(f), which is another effective procedure for service under § 16-4-102, Arkansas’s long-arm law. See Ark. Code Ann. § 16-4-102(E), (which provides this section does not repeal or modify any other law of this state permitting another procedure for service). Rule 4 requires service resulting in actual notice in all cases where the identity or whereabouts of the defendant is known; however, in instances where his or her identity or whereabouts is demonstrated to be unknown, this Rule, particularly provision 4(f), provides a method of construction notice that is reasonably calculated to give the defendant actual notice of the proceedings and an opportunity to be heard. See Mullane v. Central Hanover Tr. Co., 339 U.S. 306 (1950), (court held statutory notice by publication is sufficient as to any beneficiaries whose interests or addresses are unknown to the trustee, since there are no other means of giving them notice which are both practicable and more effective). Accordingly, we affirm the chancellor’s ruling that appellee’s service under Rule 4(f) was legally sufficient.

In conclusion, we note appellants’ reference to Ark. Stat. Ann. § 27-339 (Repl. 1979) (now Ark. Code Ann. § 16-58-119 (1987)), and specifically to that portion of the provision that provides that no personal judgment shall be rendered against a defendant, who is constructively summoned under § 27-339 and who does not personally appear, unless the defendant was a state domiciliary at the time he or she was served or when the cause of action arose. First, we point out § 27-339 largely is intended for use in in rem actions. See Newbern, Ark. Civil Prac. and Proc., § 9-12 (1985). But, more importantly, we note that the appellee made it clear, when perfecting service upon appellants, that it was proceeding under Rule 4, and the chancellor specifically found that appellee’s actions complied with the requirements of Rule 4(f). Thus, we find that part of appellants’ argument concerning § 27-339 is of no merit in this appeal.

Because we feel the chancellor was correct on the points raised on appeal, we affirm.

       Both provisions are essentially the same, and as set out in § 16-4-102, those methods provide:
      1. When the law of this state authorizes service outside this state, the service, when reasonably calculated to give actual notice, may be made:
      (a) By personal delivery in the manner prescribed for service within this state;
      (b) In the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction;
      (c) By any form of mail addressed to the person to be served and requiring a signed receipt;
      (d) As directed by the foreign authority in response to a letter rogatory; or
      (e) As directed by the court.

       In both an order and foreclosure decree, the trial court clearly held that service of process, giving it personal jurisdiction over appellants, was perfected under Rule 4(f). The court, in its foreclosure decree, further responded to the appellants’ assertion that the appellee could not, under § 27-339, obtain a personal judgment against them, by explaining how § 27-339 would not avail them any relief.


author: John Norman Harkey, Special Justice. Tom Glaze, Justice,

text:
    Robert J. RICHARDSON v. CITY OF LITTLE ROCK PLANNING COMMISSION
    87-194
    747 S.W.2d 116
    Supreme Court of Arkansas
    Opinion delivered April 4, 1988
    [Rehearing denied May 9, 1988.]

      Ivester, Henry, Skinner & Camp, by: David P. Henry, for appellant.

      Mark Stodola, City Att’y, by: Patricia K. Benton, for appellee.

       Hickman, Hays, and Newbern, JJ., would grant rehearing.

   John Norman Harkey, Special Justice.

The Little Rock Planning Commission disapproved a subdivision application submitted by Robert Richardson. An appeal of this decision to circuit court was unsuccessful. The circuit judge concluded that certain technical violations (which presumably would have been corrected in the final plat) were not the basis for the denial, and then ruled that the Commission had discretionary authority to disapprove.

This is a case of first impression in Arkansas, insofar as it relates to the discretionary authority of planning commissions, and that it is a difficult case is evidenced by the division among members of this court.

The issue is whether a planning commission has discretionary power to disapprove a subdivision plat which meets minimum requirements set forth in the subdivision ordinance.

Article 2, Section 22, of the Arkansas Constitution, provides that the right of property is before and higher than any other constitutional sanction. This does not mean, however, that an individual is constitutionally guaranteed the right to do with such property as he or she wishes in all circumstances. Obviously, the police power and health and welfare doctrines clearly permit restrictions on property use so as to prevent detriment to the rights of the public. McCammon v. Boyer, 285 Ark. 288, 686 S.W.2d 421 (1985). We have frequently held that the private use of property can be restricted by zoning regulations. See, e.g., Winderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W.2d 74 (1971).

A planning commission is not a legislative body but functions in an administrative capacity and derives its authority from the legislature. City of Paragould v. Leath, 266 Ark. 390, 583 S.W.2d 76 (1979); and Arkansas Power and Light Co. v. City of Little Rock, 243 Ark. 290, 420 S.W.2d 85 (1967). The enabling legislation, Ark. Code Ann. § 14-56-417 (1987), provides in pertinent part:

Following adoption and filing of a master street plan, the commission may prepare and shall administer, after approval of the legislative body, regulations controlling the development of land. . . . The regulations controlling the development of land may establish or provide for the minimum requirements as to information to be included on the plat filed for record; the design and layout of the subdivision, including standards for lots and blocks, street rights of way, street and utility grades, and other similar items; the standards for improvements to be installed by the developer at his own expense, such as street grading and paving, curbs, gutters and sidewalks, water, storm and sewer mains, street lighting and other amenities. [Emphasis added.]

Once the Planning Commission has exercised its authority in drafting regulations pertaining to subdivision development, it is bound by those regulations and “shall administer” them. The Commission is guided by standards which can be uniformly applied and which give notice to subdividers of the minimum requirements with which they must comply in order to obtain approval. Smith v. City of Mobile, 374 So. 2d 305 (Ala. 1979).

We agree with the appellant that the Planning Commission exceeded its authority when it denied approval of the preliminary plat on considerations other than the minimum standards set forth in the subdivision ordinance.

When a subdivision ordinance specifies minimum standards to which a preliminary plat must conform, it is arbitrary as a matter of law to deny approval of a plat that meets those standards. Odell v. City of Eagan, 384 N.W.2d 792 (Minn. App. 1984). Accordingly, if the plat is within the use permitted by the zoning classification and meets the development regulations set forth in the subdivision ordinance, then the plat by definition is in “harmony” with the existing subdivisions.

A primary purpose of these provisions is to ensure that a landowner’s plat will be objectively measured against the concrete standards of the subdivision ordinance in effect. Thus, these provisions balance the interests of planned community growth with the private rights of landowners. Reynolds v. City Council of Longmont, 680 P.2d 1350 (Colo. App. 1984); RK Dev. Corp. v. City of Norwalk, 156 Conn. 369, 242 A.2d 781 (1968); and Dosmann v. Area Plan Comm’n of St. Joseph County, 160 Ind. App. 605, 312 N.E.2d 880 (1974).

The record clearly demonstrates that appellee denied approval of the plat based upon considerations not authorized by the ordinance. Pursuant to the subdivision ordinance Section 37.14(e)(3), appellant received a letter setting forth two reasons for denial: (1) Proximity of a proposed cul-de-sac to the adjacent lots and (2) Marginal development potential of the land, resulting in unusual lot shapes and means for access. The final plat submission from which appellant appeals does not contain a culde-sac, and the subdivision ordinance does not contain the term “marginal development potential.” In fact, there is testimony to the effect that the term “marginal development potential” was formulated ad hoc as a reason for denying appellant’s plat.

In short, a planning commission may not disregard the regulations set forth in the subdivision ordinance and substitute its own discretion in lieu of fixed standards applying to all cases similarly situated. RK Dev. Corp., 156 Conn. 369, 242 A.2d 781. A planning commission is authorized and required to determine whether a plat presented is in compliance with the particular subdivision regulations. Once compliance is had, no discretionary power to disapprove exists. To rule otherwise would sublimate objective requirements, and instead substitute subjective thinking by individual members of a particular planning commission. This was never contemplated by the law.

We reverse.

Glaze, J., concurs, Hickman, Dudley and Newbern, JJ., dissent, Hays, J., not participating.

Tom Glaze, Justice,

concurring. I concur with the majority opinion holding that the Little Rock Planning Commission lacks discretion to deny approval of a subdivision plat which meets the minimum requirements set forth in the subdivision ordinance.

The trial court found that technical violations listed by the planning commission were not the basis for its denial of the Forest Hills preliminary plat but that the commission was concerned about the location of the access street in close proximity to the rear of the lots in Robinwood. The court held that the commission has discretion to consider such circumstances even though the street location otherwise complies with the minimum requirements set forth in the subdivision ordinance.

The dissent confuses the issue by arguing that Mr. Richardson has failed to meet certain minimum requirements set forth in the ordinance and that the majority ignored that fact. Not true. Neither the majority’s nor my concern is with whether technical violations exist, for all agree that the requirements must be met before the final plat is approved. As already noted above, correcting those violations is implicit and mandatory under the trial court’s decision. However, that is not the part of the trial court’s decision with which the majority and I disagree. Rather, our concern is with the trial court’s holding that the planning commission has discretion to deny the approval of a plat even if it complies with the minimum requirements set forth in the ordinance.

Unquestionably, the commission has wide discretion under Arkansas’s state municipal planning laws and those subdivision ordinances enacted to control, regulate and develop land. In this respect, the commission here had discretion in enacting the extensive underlying requirements contained within the subdivision ordinance and in determining whether a plat submitted for its approval is in compliance with that ordinance. But this discretion is not unlimited. Any discretion the commission may have cannot be construed so broadly as to permit the commission to inject ad hoc requirements at its fancy.

Indeed this is precisely what occurred. In his dealings with the planning commission, Mr. Richardson went through five plat revisions in an attempt to comply with the subdivision ordinance. He eventually submitted plats, option A, which contained no culde-sac, and option B, which omitted the cul-de-sac. Both plats were denied. Mr. Richardson appealed only the denial of option A, which except for certain technical violations, met the requirements of the subdivision ordinance. The commission, by letter, still denied Richardson’s final plat (option A); its reasons were (1) proximity of proposed cul-de-sac to the adjacent existing lots and (2) marginal development potential of the land resulting in unusual lot shapes and means for access.

The subdivision ordinance in no way mentions the term “marginal development potential,” and obviously is a new term or condition coined by the commission for this particular subdivision. How can applicants meet such subjective and new criteria without looking to some objective, reasonable and uniform standards provided by the commission?

In short, the commission simply cannot disapprove an applicant’s plat on a whim. Clear reasons for denial, stemming from the subdivision ordinance, must be given by the commission, so an applicant will be afforded an informed and reasonable opportunity to meet the requirements expected of the applicant. This, too, provides an objective standard by which the courts, when called upon, can review commission decisions.

Once again, the majority’s decision does not change the fact that the final plat submitted for approval must conform to the requirements set forth in the ordinance. What the decision does do, however, is restrict the planning commission’s power to deny approval of a plat on an arbitrary basis. Mr. Richardson should have his plat accepted or denied on the basis of uniform standards applied equally to those similarly situated. To hold otherwise subjects each developer to evershifting standards, never knowing the extent of his or her property rights.

Darrell Hickman, Justice, dissenting. This is a case of a private developer who bought land on a steep hillside in west Little Rock not suitable to easy development and then refused to change his plan because it would cost him money. The commission decided that until he met their requirements it would not be an acceptable subdivision. It is our duty to review the evidence in the light most favorable to the appellee and affirm the judgment if there is any substantial evidence to support it. Rhea v. Harris, 293 Ark. 271, 737 S.W.2d 626(1987). Furthermore, it is our duty to affirm an administrative agency’s decision unless it is arbitrary. See Green v. Carder, 282 Ark. 239, 667 S.W.2d 660 (1984). There is no suggestion the decision was arbitrary. Using this formula, this case should be affirmed.

The majority states the issue is whether a planning commission has discretionary power to disapprove a subdivision plat which meets minimum requirements of a subdivision ordinance; but the majority ignores the fact that the appellant’s plan does not comply with the minimum requirements. The street does not meet the minimum requirement for adequate site distance on a curve. The side lot lines were not at right angles with the street as required by the subdivision ordinance. There was also testimony offered that one of the lots was more than three times as deep as it was wide, which is prohibited by the ordinance. Richardson, the developer, admitted that there were inconsistencies between the plat and the subdivision ordinance requirements; yet he blindly contends that he was in strict and total compliance with the ordinance. There was testimony offered that the nonconformities in the plat could be corrected at the final platting time. However, Richardson’s own witness said that he did not know whether the changes could still be made and allow for the 15 lots Richardson insists on having in the subdivision. Richardson stated that he did not want to reduce the number of lots from 15 to 12 because “they stood to lose $100,000 to $150,000.” There was also testimony offered that the development would cause erosion in adjacent Robinwood Subdivision and depreciation of the value of some of the homes in Robinwood.

The commission is authorized to consider the proper drainage and any adverse impact on adjoining properties in deciding whether to approve a preliminary plat. For example, the subdivision ordinance specifies that its purpose is:

To protect and provide for the health, safety and general welfare of the public.
To protect and conserve the value of buildings and improvements, and to minimize adverse impact on adjoining or nearby properties,.
To establish a beneficial relationship between the uses of land and buildings, and the municipal street system; to require the proper location and design of streets and building lines; to minimize traffic congestion; and to make adequate provision for pedestrian traffic circulation.
To encourage the wise use and management of natural resources; to provide adequate and safe recreational areas; to maintain the natural beauty and topography of the municipality and to ensure appropriate development with regard to these natural features; to minimize the pollution of air, ponds and streams; to ensure the adequacy of draining facilities.

Little Rock, Ark., Code of Ordinances § 37-2 (1978).

Both the appellant and majority rely on several cases for the rule that a planning commission does not have the discretion to deny a plat when it complies with all the technical requirements of the ordinance. First, those cases do not apply because the plat did not comply with the subdivision ordinance requirements. Next, that bold statement is a distortion of the law. The planning commission clearly has some discretion under the ordinance. If it had no discretion or could use no judgment, then there would be no need for a planning commission. The planning commission would consist of a single bureaucrat who could stamp a yes or no on a developer’s plan.

A commission uses discretion, for example, when a variance is granted. The subdivision ordinance addresses this specifically:

Where the planning commission finds, however, that extraordinary hardships or practical difficulties may result from strict compliance with these regulations, or the purpose of these regulations may be served to a greater extent by an alternative proposal, it may approve variances to the subdivision regulations so that substantial justice may be done and the public interest secured.

Little Rock, Ark., Code of Ordinances § 37-10.

Surely the commission has the discretion to consider the lot shapes in deciding whether to approve a preliminary plat. The ordinance specifically provides:

The size, shape and orientation of lots shall be appropriate for the location of the subdivision and for the type of development and use contemplated.

Little Rock, Ark., Code of Ordinances § 37-24.

The Ordinance also gives the commission the discretion to consider the means for access and location of streets. It provides:

Particular attention shall be given to width, arrangement and location of streets; utility easements; drainage; lot sizes and arrangements; and other facilities such as parks, playgrounds or school sites, public buildings, public areas and arterial streets; and the relationship of the proposed subdivision to adjoining, existing, proposed and possible subdivision of lands.

Little Rock, Ark., Code of Ordinances § 37-14.

It also states:

All streets shall be constructed in accordance with applicable City of Little Rock standards and specifications as provided in the master street plan of the City of Little Rock or other such standards and specifications adopted by the board of directors.

Little Rock, Ark., Code of Ordinances § 37-34.

Undoubtedly, the ordinance intends for the planning commission to take into consideration the location and arrangement of streets, the lot sizes and arrangements, as well as “the relationship of the proposed subdivision to adjoining, existing, proposed and possible subdivision of lands.”

The trial judge found that the technical violations of the ordinance were not the basis of the planning commission’s denial of the plat, but that the commission had discretion to deny a plat. However, the non-compliance with the ordinance certainly led to the unusual lot shapes and means for access which the planning commission gave as one of the reasons for denying the plat.

The commission gave two reasons for the denial of the appellant’s plat: “(1) proximity of [the] proposed cul-de-sac to the ddjacent, existing lots and (2) marginal development potential of the land, resulting in unusual lot shapes and means for access.” The appellant submitted two plats; one plat had a cul-desac and one did not. Both the appellant and the majority opinion focus on the term “marginal development potential” and ignore the language “resulting in unusual lot shapes and means for access.” The subdivision ordinance clearly provides that the commission can consider the lot shapes and means of access in deciding whether to approve a preliminary plat.

In summary the planning commission is charged with planning the orderly growth of a city. The appellant, Mr. Richardson, simply refused to try to compromise with the commission. He either made a bad purchase of marginal land, or he is trying to squeeze too much profit out of the land. People who live in the subdivision or nearby will pay for the poor planning.

It comes down to whether the duly constituted authority to govern city planning and development or a private developer will decide what is best for the city. I would affirm the trial court’s decision which upheld the city planning commission.

Dudley and Newbern, JJ., join in the dissent.

       Again, to avoid any misunderstanding, I reiterate the point — which is also made by the majority — that Richardson must correct those noncompliances with the requirements of the subdivision ordinance, unless, of course, those violations are waived.


text:
    Christopher GOBER v. William R. DANIELS, Municipal Judge
    88-3
    748 S.W.2d 29
    Supreme Court of Arkansas
    Opinion delivered April 11, 1988

      Gibson & Deen, by; Thomas D. Deen, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant Christopher Gober was convicted in municipal court on charges of second offense driving while intoxicated (and other offenses) and was sentenced by appellee to sixty days imprisonment with fifty days suspended, $3,225.00 in fines with $1,800.00 suspended, and eighteen months suspended driver’s license. Gober sought to appeal to circuit court and, pursuant to Ark. Code Ann. § 16-96-504 (1987), formerly Ark. Stat. Ann. § 44-508 (Repl. 1977), appellee set a $3,225.00 cash bond whereupon Gober filed a petition for writ of mandamus in circuit court asking that appellee be compelled to accept bond with approved security on the grounds that Gober could not obtain supersedeas of the lower court’s judgment if required to pay a cash bond in the amount of the fines imposed which additionally worked to deny him his right to a trial de novo in circuit court. The circuit court issued a writ of mandamus directing that bond be reduced by the amount of the fines which were suspended, but otherwise refused to interfere with the appellee’s discretion in requiring a cash bond.

On appeal, Gober argues that while the circuit court correctly found that bond could not be increased beyond the sum of the fines actually imposed, our rules of criminal procedure along with principles of constitutional law militate against the imposition of cash bonds in that amount. Appellee cross-appeals arguing that the circuit court correctly refused to set aside the cash bond requirement but erred in reducing the bond and otherwise should never have issued the writ because mandamus will not lie to compel action on discretionary matters. We agree with the appellee’s final contention that mandamus was not the proper remedy and hold that the circuit court erred in issuing the writ. Municipal Court of Huntsville v. Casoli, 294 Ark. 37, 740 S.W.2d 614 (1987).

In the course of reaching our holding in this case we point out that whereas Gober relies on Rule 9.2 of the Arkansas Rules of Criminal Procedure, which deals with pretrial release bonds, Rule 1.2 provides that the rules of criminal procedure apply to proceedings in inferior courts only where their application is practicable or constitutionally required. The regimens of Rule 9.2 have no practicable application to the setting of a supersedeas bond contemplated by § 16-96-504, nor are they constitutionally required. There is a marked difference between the purpose of supersedeas, which is to stay the effect of the judgment, and those bonds which operate to guarantee the appearance of the person.

Section 16-96-504 provides that in appeals from convictions for misdemeanors there shall be no supersedeas of the judgment unless bond shall be given with approved security. The type and amount of such a bond is a discretionary matter with the presiding municipal judge and, to that extent, it is like the bail bond discussed in Casoli, supra. Although mandamus will lie to require inferior courts to act when they have improperly declined to do so, the writ is never applied to control the discretion of a trial court or to correct an erroneous exercise of discretion. State v. Nelson, Berry Petroleum Co., 246 Ark. 210, 438 S.W.2d 33 (1969). Nor will mandamus lie where some other remedy such as appeal and petition for reduction of bond accords adequate relief. Nelson, supra.

Because mandamus was not the proper remedy to compel action by appellee in the discretionary act of setting supersedeas bond as directed by statute, we vacate the writ and dismiss the appeal.

Appeal dismissed; writ of mandamus vacated.


author: Robert H. Dudley, Justice. Steele Hays, Justice,

text:
    Harold WILSON, et al. v. William Frank KOBERA, et ux.
    87-338
    748 S.W.2d 30
    Supreme Court of Arkansas
    Opinion delivered April 11, 1988

      Eichenbaum, Scott, Miller, Liles & Heister, P.A., by: Leonard L. Scott, and Frank S. Hamlin, for appellants.

      Phil Stratton and Casey Jones, Ltd.', and Lazer, Sharp and Mayes, P.A., for appellee.
   Robert H. Dudley, Justice.

The jury found that appellants were not guilty of negligence which proximately caused the car wreck at issue in this case. Later, the trial judge ruled that the jury’s finding was clearly against the preponderance of the evidence and granted a new trial. We reverse.

Blainey Hill Road in Conway runs east and west, and on January 22,1985, between 6:30 and 6:45 a.m., the lane going east was partially covered with a thin glaze of ice. At that time, Patsy Hurley was traveling in an easterly direction on the road, attempted to stop, and hit some of the ice. The car she was driving started to skid. It ultimately came to rest in a position diagonal to the road with the front end in a ditch on the south side of the road and the rear end blocking approximately one-half of the east-bond lane. (The shoulder of the road was very narrow.) Miss Hurley could not get her car out of the ditch. After making some telephone calls for help at a nearby residence, she returned to her car, and waited inside the warm car. Her headlights, taillights, and dome light were all on.

Soon thereafter, appellant Wilson, driving west at about 15 miles per hour in a truck owned by appellant Virco Manufacturing Company, passed the Hurley car. He saw a woman sitting motionless in the wrecked car and stopped his truck to offer assistance. At that point the shoulder of the road is so narrow that he was only able to get his right wheels off the westbound lane of traffic, leaving his truck partially on the road. His headlights were on, although there was conflicting testimony about whether they were on bright or dim. The testimony placed his truck to the west of the car driven by Miss Hurley, with the distance between the rear of his truck and the back of Miss Hurley’s car as close as a car length to a length-and-a-half, and as far away as fifty to seventy-five feet. One disinterested witness testified that he did not leave “enough room to go around,” while another disinterested witness testified that “there was enough room you could have driven a tractor-trailer rig, you know, between them. There was plenty of room between them.” Appellant Wilson saw a car approaching from the west and waited in the truck for the car to pass.

Appellee William Frank Kobera was driving that eastbound car, a Chevrolet Chevette, which was 13 feet in length. He testified that he came over a ridge and clearly saw the truck headlights from a distance of about 800 feet. He testified that the headlights were probably on bright, at least he was blinded by them. He further testified that he was going about 30 miles per hour and that he started applying his brakes about two car lengths before he got to the parked truck. He testified that he then skidded into Miss Hurley’s car. A part of his direct testimony is as follows:

Q. Did you get your foot on the brake hard enough to feel whether they caught—
A. Yes.
Q. —when you were sliding on ice? Do you see what I’m asking you?
A. Yes, I — I—it seemed like they caught.
Q. Did you get the sensation that you were just skimming over that ice?
A. Yes.

Appellant Wilson testified that 15 to 20 miles per hour was the maximum safe speed with ice on the road, and a State Policeman testified that the stopping distance, including reaction time, for a car traveling 30 miles per hour on a clean road is 80 feet.

The amount of daylight was in dispute. It ranged from “being dark” to just “breaking daylight.”

Appellee Kobera testified that if the truck had not been in the way he could have gone around Miss Hurley’s car.

Various interrogatories were submitted to the jury, one of them being, “Do you find from a preponderance of the evidence that Harold Wilson/Virco was guilty of negligence which was a proximate cause of the occurrence?” The jury answered “no.” Obviously, the jury could have found either (1) that appellant Wilson was not guilty of negligence, or (2) that such negligence was not the proximate cause of the collision. Appellee Kobera filed a motion for a new trial. The trial court granted the new trial stating “it is this Court’s opinion that Harold Wilson/Virco was guilty of negligence and was the proximate cause of the accident complained of herein because Harold Wilson parked the Virco truck illegally on the highway in such a position in relation to the disabled vehicle driven by Ms. Hurley, whose vehicle was out into the lane in which the plaintiff [appellee] was traveling, that he effectively created a blockade of the entire roadway.”

In 1982, we amended ARCP Rule 59(a)(6) to state that a trial judge could set aside a jury verdict only when it is “clearly contrary to the preponderance of the evidence. . . .” Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982). The trial judge cannot substitute his view of the evidence for that of the jury. Bryant v. Sorrells, 293 Ark. 276, 737 S.W.2d 450 (1987). If the trial judge denies the motion for a new trial, we will affirm if there is any substantial evidence to support the verdict. If he grants the motion for a new trial, we will affirm if he did not abuse his discretion in finding that the verdict was clearly against the preponderance of the evidence. Brown v. Wilson, 282 Ark. 450, 669 S.W.2d 6 (1984). Here, the trial judge abused his discretion because the verdict was not clearly against the preponderance of the evidence.

The trial judge ruled that the appellants were guilty of negligence because their truck was parked illegally on the highway in such a position that it “effectively created a blockade of the entire roadway.” The appellant argues that the ruling is erroneous because the jury might have found that appellant Wilson did not violate Ark. Code Ann. § 27-51-1303 (1987), and might have found that he parked the truck 75 feet west of Miss Hurley’s car, which left sufficient room to proceed. However, we need not pass upon the ruling on negligence because the ruling on proximate cause was certainly an abuse of discretion. The jury may well have found that the proximate cause of the collision was the appellee’s speed of 30 miles per hour on a road glazed with ice. There was substantial evidence to that effect. There was testimony that the stopping distance, including reaction time, on a clean road is 80 feet, and there was testimony that one should not have driven on this road with ice at any more than 15 miles per hour. The appellee testified that he applied his brakes about two car lengths, or about 20 feet, before he reached the parked truck and began skidding on the ice. The jury had substantial evidence by which it could have found that the truck was as far as 75 feet from Miss Hurley’s car and that, at the speed of 30 miles per hour, appellee simply skidded on the ice into the Hurley car, and that the position of appellant’s truck was not the proximate cause of the wreck. Therefore, the trial judge abused his discretion in setting aside the jury verdict as being clearly contrary to the preponderance of the evidence.

Reversed and remanded for entry of an order consistent with this opinion.

Hays and Glaze, JJ., dissent.

Steele Hays, Justice,

dissenting. The trial court heard the testimony in this rather unusual case and concluded that the verdict was clearly against the preponderance of the evidence. In his judgment a new trial was warranted and as I cannot say his discretion was abused, I would affirm.

Glaze, J., joins this dissent.