author: Tom Glaze, Justice. Robert L. Brown, Justice,

text:
    Cliff BIEDENHARN, Earl Oxford, and Dan Melton v. Bobby HOGUE
    98-1463
    1 S.W.3d 424
    Supreme Court of Arkansas
    Opinion delivered October 7, 1999
    [Petition for rehearing denied November 18, 1999.]

      Oscar Stilley, for appellants.

      Barrett & Deacon, by: J.C. Deacon and D. P. Marshall Jr., for appellee.

       Brown and Smith, JJ., would grant.

   Tom Glaze, Justice.

This case involves former Speaker of the Arkansas House of Representatives, appellee Bobby Hogue. In February of 1997, Hogue was hired as Arkansas State University’s (ASU’s) Assistant Athletic Director for Development, a newly created position authorized and funded by the 1997 General Assembly when Hogue was Speaker. Actually, ASU officials had agreed to create the position in 1996, and had unsuccessfully offered the job to two other men before Hogue was hired. Nonetheless, appellants, a group of taxpayers, later initiated this litigation questioning whether Hogue was involved in creating the new position and whether his employment in the position was lawful. Jurisdiction of this case on appeal is in our court because issues have been raised concerning the interpretation of the Arkansas Constitution and Act 34 of 1999. See Ark. Sup. Ct. R. 1—2(a)(1) and (b)(6).

The relevant facts leading to this lawsuit follow. As indicated above, although ASU officials had no one in mind for the university’s new athletic director position, appellant taxpayers became concerned when Hogue was offered and accepted the job. Hogue began working as the assistant athletic director in April of 1997, but the job was terminated on June 30, 1998, one day before the Governor issued an executive order prohibiting state legislators from working for state agencies.

On November 6, 1997, the taxpayers filed suit against Hogue alleging that Hogue aided in creating the position, and, in doing so, 1) contravened Ark. Code Ann. § 19-4-1604 (Repl. 1998), which prohibits a person from drawing salaries from two different state agencies; 2) violated Ark. Const, art. 5, § 10, which prohibits a member of the General Assembly from being elected or appointed to any “civil office”; 3) violated Ark. Const, art. 16, § 4, by making a profit out of or misusing public funds by taking the job; and 4) violated his oath of office.

In February of 1998, the Attorney General intervened, adding allegations of 1) breach of fiduciary duty, 2) separation of powers, 3) incompatibility of offices, and 4) usurpation of office. The complaint in intervention also fleshed out the taxpayers’ “civil office” allegations. The Attorney General later abandoned the incompatibility allegation.

In July of 1998, the Attorney General dismissed his complaint; however, the taxpayers were permitted to proceed and to adopt the Attorney General’s viable allegations as their own. On July 20, 1998, Hogue filed a motion for summary judgment; he attached thirteen affidavits, including the statements of Dr. Les Wyatt, President of ASU, and Barry Dowd, ASU’s Athletic Director. Both Wyatt and Dowd averred that Hogue had not been involved in any way in the creation of the assistant athletic director position and that no promises of extra funding or threats of decreased money for the university were made in conjunction with the new position. Hogue’s motion also posited that the legal controversy regarding his employment became moot when he ended his employment on June 30, 1998. The taxpayers offered no counter-affidavits, and the trial court granted summary judgment in favor of Hogue. Appellants appeal, raising five points for reversal. Hogue responds to the merits of appellants’ arguments, but first submits that this legal controversy has been made moot not only by the termination of his employment on June 30, 1998, but also by the General Assembly’s enactment of Act 34 of 1999. We address the mootness issue first, since if this case is now moot, we need not reach the appellants’ points for reversal.

A case is moot when any decision rendered by this court will have no practical legal effect on an existing legal controversy. Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 301, 954 S.W.2d 221, 223 (1997). As just mentioned, not only did Hogue’s employment with ASU end on June 30, 1998, but during the 1999 session of the General Assembly, the legislature passed Act 34. Section 2(a)(1) of that Act provides in pertinent part that “no person elected to a constitutional office [including the House of Representatives] may, after being elected to the constitutional office, and during the term for which elected, enter into employment with any state agency. ...” “State agency” is defined under the act to include state-supported colleges and universities such as ASU. See Act 34, Section 1(a). The Act further provides that former members of the General Assembly shall not be eligible to be employed by any state agency within two years after he or she leaves office in any job which was created by the legislature within two years prior to his or her leaving office. Act 34, Section 2(e).

In sum, Act 34 now makes it unlawful for a member of the General Assembly to enter into employment with a state agency like Hogue did in 1997. Thus, any decision we may render in this case will have no precedential value since the General Assembly has now in clear terms made it unlawful for any legislator to be employed by a state agency under the circumstances in which Hogue found himself in this legal controversy.

The only remaining issue with respect to mootness is whether Hogue must refund the monies he received as an ASU employee. Our case law has established the rule that, even if an officer holds a job and provides services illegally, he may retain the quantum meruit value of the services he provided. Harris v. Revis, 219 Ark. 586, 243 S.W.2d 747 (1951). In the Revis case, Harris was the mayor of Clarksville and also worked as a laborer for the Clarksville water and light departments, drawing a salary for both positions. In an illegal-exaction suit brought by several concerned taxpayers, the Revis court held that Harris was entitled to retain the quantum meruit value received for his services even though he was holding the water and light department job in violation of a state statute. The court further ruled in Revis that the critical factor was the fact that the General Assembly had not declared any such contracts (i.e., between a municipal officer and a provider of services to the municipality) to be “null and void.” Quoting from Gantt v. Ark. Power & Light Company, 189 Ark. 449, 74 S.W.2d 232 (1939), the court said:

In the absence of the prohibitory words “null and void” and where the contract has been performed by the parties in good faith, compensation may be retained measured by the reasonable value thereof. Such recovery, however, is not because of the contract, but is grounded squarely upon the proposition that valuable services having been rendered which have been accepted by the parties, it would be inequitable and unjust to permit one party to substantially gain under the contract to the great and irreparable damage of the other.

219 Ark. at 590-591, 243 S.W.2d at 750.

Consistent with the holdings in Revis and Gantt, this court also later decided the case of Starnes v. Sadler, 237 Ark. 325, 372 S.W.2d 585 (1963). There, even though members of the General Assembly illegally held office as members of state boards, this court held that, in the absence of a showing of fraudulent intent by the members, the members were not required to account for the services and expenses they had incurred.

Throughout this litigation, the taxpayers have insisted that Hogue’s job was a mere sinecure, that is, a “position or an office that requires little or no work but provides a salary.” American Heritage College Dictionary 1270 (3d ed. 1997). The evidence submitted by Hogue, however, proves quite the contrary. Attached to Hogue’s affidavit in support of his motion for summary judgment is a memo he prepared for Dr. Wyatt, summarizing his activities from July of 1997 to April of 1998. During that time he raised approximately $175,000 for ASU and lined up another $75,000 in corporate endowments. The primary purpose of the assistant athletic director position was to raise funds for ASU, and Hogue certainly accomplished that goal. As such, he should be allowed to retain the value of the services he performed.

In addition, no one contends the employment contract entered into between Hogue and ASU contained the prohibitory words “null and void” noted in Revis. Thus it appears that the only situation in which a refund of money would be in order is that in which there is evidence of fraud or evidence that the person in question acted in bad faith. No such evidence exists. Hogue offered thirteen affidavits, all of which stated there was no behind-the-scenes finagling on his part to land the job. Appellants point only to a February 1997 conversation wherein Hogue mentioned to Dr. Wyatt that he would soon be “term-limited” out of office and would like to be kept in mind for any job that might open at ASU. There was no indication, however, that Hogue knew at that time ASU had already made plans to develop a new assistant athletic director position.

In fact, every affidavit submitted with Hogue’s motion for summary judgment states emphatically that there was no quid pro quo involved and that Hogue never conditioned any of ASU’s funding on his being given the job. Not a single one of the affidavits was rebutted by the taxpayers. When the trial judge asked the taxpayers if they wanted to offer any counter-proof, they said no. While Hogue’s statement to Dr. Wyatt aroused the appellants’ suspicion, there was simply no evidence from which a genuine issue of material fact could be inferred that Hogue acted with fraudulent intent or bad faith. See Wallace v. Broyles, 331 Ark. 58, 66, 961 S.W.2d 712, 715 (1998). As we recently held, a party’s suspicions about motive do not give rise to a genuine issue of material fact. Hodges v. Huckabee, 338 Ark. 454, 464, 995 S.W.2d 341, 348 (1999). Indeed, the proof presented below showed that Hogue never acted to create the assistant athletic director job and that ASU alone had done so prior to its later consideration of Hogue. In addition, Hogue openly withdrew his participation in any of the legislative processes which had to do with either ASU’s budget or the new director job; nor did he ask any legislative member to assist him in creating a job or salary for him. As a matter of law, summary judgment was therefore appropriate, as the undisputed evidence shows that Hogue committed no fraud but, instead, acted in good faith. The most that could be said is that, in hindsight, especially with the later enactment of Act 34, he may have acted improvidently by accepting the ASU job.

In any event, the General Assembly by enacting Act 34 has now made the law crystal clear that it is unlawful for legislators to work for state agencies like Hogue did in this controversy. Whether Hogue’s employment was or was not lawful prior to Act 34 is of no consequence — it is now illegal, making this litigation moot. In sum, we know now such employment is unlawful, and a legal controversy like the one now before us is unlikely to recur. Moreover, because there is no evidence suggesting fraud or bad faith by Hogue in this matter, we agree with the trial court that Hogue is entitled to retain his salary earned while performing as ASU’s assistant athletic director. Therefore, we affirm the trial court’s decision granting Hogue summary judgment.

Brown, Imber, and Smith, JJ., dissent.

Robert L. Brown, Justice,

dissenting. The majority affirms summary judgment in favor of former Speaker of the House Bobby Hogue. In doing so, the majority concludes that there are no issues of fact presented by the plaintiffs’ complaint, and, as a result, judgment should be summarily entered in favor of Hogue. Because I believe there are issues of fact raised in this case that cannot be disposed of by an abbreviated procedure, I dissent.

The affidavits filed by the ASU officials present the first issue of fact: who made the first overture about a job at the university for Hogue? The trial court found that ASU approached Hogue about development work for the athletic department. That finding, however, overlooks the fact that it was Hogue who initially raised the issue of a potential job at ASU with President J. Leslie Wyatt. After the General Assembly convened in 1997, Dr. Wyatt describes in his affidavit what occurred in that conversation:

In a casual conversation with Bobby Hogue over lunch in early February, Mr. Hogue mentioned that he would be leaving the legislature after this session due to term limits and that he would like for us to keep him in mind if any positions became open at ASU. In [a] later conversation with Barry Dowd, I mentioned Mr. Hogue’s comment about possibly working for ASU and asked Mr. Dowd if Mr. Hogue would be a good candidate for the Assistant Athletic Director for Development position we intended to establish. I was aware that other state supported universities had employees serving in the legislature and knew of no prohibition to the hiring of a member of the legislature to a position at ASU. Mr. Dowd and Mr. Hogue later met and Mr. Dowd reported to me that he believed Mr. Hogue would be an excellent choice to serve as Assistant Athletic Director for Development. Mr. Hogue was ultimately hired on February 22, 1997.

ASU Athletic Director Barry Dowd confirmed those events in his own affidavit:

During the legislative session of 1997, Dr. Wyatt telephoned me to tell me that in a casual conversation with Bobby Hogue over lunch, Mr. Hogue mentioned that he would be leaving the legislature after this session due to term limits and that he would like for us to keep him in mind if any positions became open at ASU. He asked me whether I believed Mr. Hogue would be a good candidate for the Assistant Athletic Director for Development position we intended to establish. I did not know Bobby Hogue but arranged a meeting with him to discuss whether he would be interested in working in athletic development. After the interview, I reported to Dr. Wyatt that I believed Mr. Hogue would be an excellent choice to serve as Assistant Athletic Director for Development. I offered the position to Mr. Hogue and while he was considering the offer inquired of another candidate, Barry Sellers, if he would take the position if the person currently under consideration declined. Mr. Hogue accepted the job and we announced his employment at a press conference on February 22, 1997. Fayeth Williams Hurt was hired to work with existing supporters.

The two affidavits make it clear that Hogue first broached the subject about a job to Dr. Wyatt “in early February” and was hired as Assistant Athletic Director for Development within a matter of weeks on February 22, 1997. To state the obvious, this all took place during the legislative session when Hogue was Speaker of the House and when ASU’s budget for the next biennium, which included the Assistant Athletic Director position, as well as various capital improvement projects in separate bills were pending before the General Assembly.

The majority makes much of the fact that Hogue did not vote on Act 688, which is the ASU appropriation. But I do not believe that fact alone decides the issue. Hogue was hired for the position of Assistant Athletic Director on February 22, and this fact was publicized by ASU the following day. Act 688 appropriated funds for all positions at ASU from the president on down and in some cases provided major salary increases for positions like the football and basketball coaches. It also provided that the newly created position of Assistant Athletic Director would pay $71,000 in 1997-98 and $73,000 in 1998-99. The bill which became Act 688 made its way through the Senate and House in February and March of 1997. It was common knowledge that the bill created a new position for the Speaker of the House. In fact, House Resolution 1027 was passed by House members on March 10, 1997, congratulating Hogue on his new position. On March 19, 1997, Act 688 was signed into law by the Governor.

It strains credulity to argue that the inclusion of a new position with a significant salary for the Speaker of the House of Representatives did not bolster the chances of the appropriation’s passage. I cannot say categorically that ASU did not benefit from Hogue’s agreement to accept this position which was well publicized before ASU’s appropriation was signed into law. In addition, Hogue co-sponsored three pieces of legislation at this session, which involved multi-million dollar capital projects for ASU. Under different circumstances, this would fall under the heading of effective legislation for a constituent, but in the glare of the new job, there is the appearance of a quid pro quo from the Speaker. At least, this series of events creates an issue that should be developed at trial.

Next, the majority maintains that this matter is moot because Act 34 of 1999 subsequently made it a felony for a state representative to be employed by any state agency during that representative’s term of office. Act 34 became effective on February 9, 1999. The majority’s conclusion, however, gives short shrift to the plaintiffs’ illegal exaction suit for the salary received by Hogue between April 21, 1997, and June 30, 1998. Clearly, Act 34 had no effect on the claim for the salary received before the effective date of the Act.

The majority goes on, though, and maintains that even assuming Hogue served illegally as Assistant Athletic Director, he earned his salary in full as a fundraiser and coordinator of legislative events and, thus, should not be required to reimburse the State. I do not agree that we can reach that conclusion by summary judgment. Our caselaw is clear, and the majority acknowledges this, that the principle of quantum meruit only comes into play when the public employee serving illegally is doing so in good faith. See Beshear v. Ripling, 292 Ark. 79, 728 S.W.2d 170 (1987); Martindale v. Honey, 261 Ark. 708, 551 S.W.2d 202 (1977); Revis v. Harris, 219 Ark. 586, 243 S.W.2d 747 (1951); Gantt v. Ark. Power & Light Co. 189 Ark. 449, 74 S.W.2d 232 (1939). Here, the underlying issue of fact is whether Hogue was operating in good faith when he made the first overture to ASU’s president about a job when that overture occurred during the legislative session. The pertinent Ethics Statute reads in part: “No public official or state employee shall use his position to secure special privileges . . . Ark. Code Ann. § 21-8-304(a) (Repl. 1996). If Hogue violated that statute by using his position to obtain a state job, it is difficult for me to see how he can jump through the hoop of good faith. In any case, this issue should be decided by trial and not by summary judgment.

I do agree with the majority that there is no basis for the plaintiffs’ claims that Hogue was appointed to “a civil office” or that he was working for two state agencies. But I am convinced that an issue of fact has been raised by the affidavits submitted on behalf of Hogue concerning whether he used his position for private gain under § 21-8-304(a).

I would reverse and remand for trial, and for that I reason, I respectfully dissent.

Imber. and Smith, JJ., join.

       The current situation should not be confused with the one presented in Massongill v. County of Scott, 337 Ark. 281, 991 S.W.2d 105 (1999). In that case, we held that money paid to quorum court members in the form of insurance premiums actually constituted an illegal exaction, as those benefits were not authorized by then-existing state law. The ordinance allowing for the insurance payments had been illegally enacted in the first place. Here, there was nothing unlawful about the creation of the ASU job or its salary.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Robert Earl BLACKWELL v. STATE of Arkansas
    CR 98-456
    1 S.W.3d 399
    Supreme Court of Arkansas
    Opinion delivered October 7, 1999

      Kearney Law Firm, by: Jack R. Kearney, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Dr. Robert Earl Blackwell, a Pine Bluff dentist, brings this appeal from a Pulaski County Circuit Court jury conviction. Blackwell was found guilty of violating the Arkansas Medicaid Fraud Act, Ark. Code Ann. §§ 5-55-101, et seq. (Repl. 1997). Blackwell was sentenced to 60 months’ imprisonment, ordered to pay a fine of $66,246.60, and directed to make restitution in the amount of $21,082.20. We have jurisdiction of this case under Ark. Sup. Ct. R. 1-2(b)(1) and (6) (1999), because it involves issues of first impression and the interpretation of the State’s Medicaid Fraud Act. Blackwell does not question the sufficiency of the evidence from which the jury found him guilty. Instead, Blackwell raises three points for reversal, wherein he claims that (1) his right to speedy trial was violated, (2) he was tried in the wrong county and jurisdiction, and (3) his Fourth Amendment rights were violated by the State’s search and seizure of his business.

In his speedy-trial argument, Blackwell submits that he was entitled to have his charge dismissed under Ark. R. Crim. P. 28.1 and 28.2, since he was not brought to trial within twelve months (365 days) from when he was charged. In his situation, 785 days had elapsed between when he was charged and brought to trial. Thus, under Rules 28.1 and 28.2, Blackwell’s date of trial commenced 420 days after when trial should have begun, unless his trial date had been correctly extended for periods of necessary delay established or authorized in Rule 28.3. He concedes that 220 of the 420 days were chargeable to him and excludable under the provisions of Rule 28.3. Even so, he argues, the State was still 200 days late in bringing him to trial, and the State failed to meet its burden to demonstrate that those 200 days were excludable under Rule 28.3. See Morgan v. State, 333 Ark. 294, 299, 971 S.W.2d 219, 221 (1998). Blackwell is mistaken.

The State submits that, while Blackwell claims that the State was 200 days late in commencing his trial, Blackwell fails to recognize 221 days’ delay that are attributable to Blackwell. Those 221 days bring his trial well within the speedy-trial period required under Rule 28.

First, Blackwell was given a mental evaluation, and it took 95 days to obtain the report. While on appeal Blackwell claims this 95-day period was not excludable and should be attributed to the State, he took the opposite position at trial. When the subject was addressed at trial, defense counsel said, “With respect to the Act III evaluation, your honor, that is excludable as a matter of law. That is the 95 days and that is excludable under state law.” Flaving conceded the exclusion of the 95-day period at trial, Blackwell may not complain of its exclusion on appeal. See Jones v. State, 329 Ark. 603, 951 S.W.2d 308 (1997).

Second, Blackwell claims a 126-day period he believes is attributable to the State and is not excludable under Rule 28.3. Again, we disagree. Blackwell exhibited some difficulty in working with counsel; he had three attorneys, two of whom withdrew with the court’s permission. At one stage, trial had been set for October 29, 1996, and an omnibus hearing was held on October 7, 1996, so the parties could ready themselves for trial. Instead, Blackwell announced at the hearing that his second counsel had betrayed him, he was afraid of her, he believed she had failed to do any of the things a prudent attorney would have done, and he could not work with her. There was considerable colloquy between the trial court, Blackwell, his attorney, and the State regarding who would or could represent Blackwell. The trial court and counsel discussed the complexities of the case and how difficult it would be for new counsel to be prepared for the scheduled October 29, 1996 trial. As a result, the trial court appointed the public defender’s office to represent Blackwell and reset the trial date to February 10, 1997. The trial court announced it was charging the 126-day delay to Blackwell because of the problems he had with his counsel. The trial court was correct.

Rule 28.3(h) generally provides that periods of delay for good cause are excluded in computing the time for defendant’s speedy trial. This court has held that when a delay results from the need for the appointment of new counsel, such appointment is excludable for good cause. See Lynch v. State, 315 Ark. 47, 863 S.W.2d 838 (1993); Glover v. State, 307 Ark. 1, 817 S.W.2d 409 (1991). Here, because appointment of new counsel was required as a result of Blackwell’s inability to work with his (second) counsel and because the State’s case involved a “massive” amount of documents, the trial court’s action in ordering a continuance to permit new counsel additional time to prepare for trial was a delay for good cause attributable against Blackwell under Rule 28.3(h).

We next turn to Blackwell’s second issue, wherein he contends he was deprived of his right to trial in Jefferson County where he asserts the crime occurred. Blackwell relies on Ark. Code Ann. § 16-88-105(b) (1987), which in relevant part provides, “[T]he local jurisdiction of circuit courts shall be of offenses committed within the respective counties in which they are held.” He further cites Ark. Const, art. 2, § 10, which reads that an accused is entitled to trial by an impartial jury located in the county in which the crime was committed. Blackwell argues that all of the acts the State claims were illegal occurred in Pine Bluff, where Blackwell’s dental practice is located, patients resided, and billings originated. Blackwell further submits that, while his Medicaid billings were submitted to the state agency in Little Rock for payments, such acts provided an insufficient nexus to bring charges against him in the Pulaski County Circuit Court.

Blackwell’s argument is inconsistent with Ark. Code Ann. § 16-88-108(c) (1987). That provision reads as follows:

Where the offense is committed partly in one county and partly in another, or the acts, or effects thereof, requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county.

See also Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999).

A person commits Medicaid fraud under Arkansas’s Act when he “purposely makes or causes to be made a false statement or representation of a material fact in any application for any benefit or payment under the Arkansas Medicaid Program.” Ark. Code Ann. § 5-55-111(1) (Repl. 1997). Here, the State charged Blackwell in Pulaski County with violating § 5-5-111(1), by alleging he unlawfully, feloniously, and purposely made or caused false statements or representations when applying for benefits or payments under the Arkansas Medicaid Program. While Blackwell’s dental practice was located in Pine Bluff and he treated patients there, his offense was consummated by submitting fraudulent billings to Arkansas’s State Medicaid Agency (Department of Human Services) located in Little Rock. Moreover, it was in Little Rock where the state agency denied or authorized Blackwell’s Medicaid claims. Clearly, Blackwell’s acts took effect in Pulaski County where the Medicaid agency received and processed Blackwell’s fraudulent bills. For these reasons, we affirm the trial court’s ruling that it had jurisdiction to try the State’s Medicaid charges against Blackwell.

In his final argument, Blackwell asserts that the State’s search and seizure of documentary evidence conducted at his place of business violated his constitutional rights under the Fourth Amendment. He first argues the judge issuing the warrant to search Blackwell’s office had no probable cause to do so. The trial court rejected Blackwell’s contention, but it also ruled that Blackwell knowingly and voluntarily gave consent to perform the search and probable cause was unnecessary. Because the record reflects Blackwell gave his written consent, we affirm the trial court’s ruling upholding the State’s search.

Section 5-55-104, in covering the subject of Medicaid fraud, requires participants of the Medicaid program to provide the following:

(a) No potential Medicaid recipient shall be eligible for medical assistance unless he has, in writing, authorized the Director of the Department of Human Services to examine all records of his own, or of those receiving or having received Medicaid benefits through him, whether the receipt of such benefits would be allowed by the Arkansas Medicaid Program or not, for the purpose of investigating whether any person may have committed the crime of Medicaid fraud, or for use or potential use in any legal, administrative, or judicial proceeding.
(b) No person shall be eligible to receive any payment from the Arkansas Medicaid Program or its fiscal agents unless that person has, in writing, authorized the Director of the Department of Human Services to examine all records for the purpose of investigating whether any person may have committed the crime of Medicaid fraud, or for use or for potential use in any legal, administrative, or judicial proceeding.
(c) The Attorney General and the prosecuting attorneys shall be allowed access to all records of persons and Medicaid recipients under the Arkansas Medicaid Program to which the Director of the Department of Human Services has access for the purpose of investigating whether any person may have committed the crime of Medicaid fraud, or for use or potential use in any legal, administrative, or judicial proceeding.
(f) All persons under the Arkansas Medicaid Program are required to maintain at their or its principal place of business all records at least for a period of five (5) years from the date of claimed provision of any goods or services to any Medicaid recipient.

As is readily made clear by the forgoing Arkansas statutes, Blackwell’s right to participate in the State’s Medicaid Program depended upon his agreement to provide his business records to the State upon request. In keeping with state law, Blackwell executed a contract with the State that he would keep all records as provided by the State’s provider manual, and he agreed to disclose the extent of services provided to individuals (patients) receiving assistance under the Medicaid program. In addition, Blackwell further agreed to make all of his records available in order to satisfy audit requirements under the program. In fact, Blackwell testified that he had signed the contract with the State agreeing to make his records available to the Department of Human Services or the Medicaid fraud units upon request, and at the time of signing, it did not seem unreasonable.

Although we have no prior case construing § 5-55-104’s provisions, the Eighth Circuit Court of Appeals has construed and upheld the Arkansas statute in the context of a search and seizure similar to the case now before us. United States v. Brown, 763 F.2d 984 (8th Cir. 1985). In Brown, the court dealt with a pharmacist, Paul S. Brown, and his corporation that provided services under the Arkansas Medicaid Program. Brown’s corporation agreed to maintain its business records of all prescriptions dispensed to Medicaid recipients, and it also agreed to make its records available to the State or the State’s designated agents. The State later sent the Attorney General’s personnel to Brown’s pharmacy to review the corporation’s records as a part of an ongoing criminal investigation, and the information gained from the review was subsequently given to the FBI. The federal government indicted Brown and his corporation, and they later filed a motion to suppress, asserting the documentary evidence obtained in the search of the corporation violated his Fourth Amendment right to be free from warrantless searches. Citing United States v. Griffin, 555 F.2d 1323 (5th Cir. 1977), the Eighth Circuit upheld the district court’s ruling denying Brown’s and his corporation’s motion to suppress, stating the following:

The situation in Griffin is virtually identical to the circumstances presented in this case and we agree with the reasoning of the Fifth Circuit. The government has a substantial interest in establishing methods by which it can effectively monitor compliance with the regulations governing the Medicaid Program and root out opportunities and instances of fraud. We see no constitutional infirmity in the government requiring a provider to agree to maintain records of Medicaid transactions and to permit periodic audits of those records as a condition for participation in the Medicaid Program. In this case, the appellants were aware of this condition, and voluntarily entered into a contract with [the State] in which they authorized such audits in exchange for obtaining the benefits attendant to participation in the Medicaid Program. Accordingly, we hold that the appellants explicitly consented to reasonable warrantless inspections of the pharmacy records by entering into the contract with [the State].

The law is well settled that a warrantless search is valid if conducted pursuant to the knowing and voluntary consent of the person subject to a search. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Here, Arkansas’s statutes and regulations contemplate that audits may be conducted pursuant to a criminal investigation, and Blackwell was aware that such audits were possible. Yet, he still signed an agreement to participate in Arkansas’s Medicaid Program. Because Blackwell consented to the State’s entering his office to audit his records, we hold the trial court was correct in denying his motion to suppress.

For the reasons above, we affirm.

       Blackwell agreed the following periods (220 days) were chargeable to him: (a) thirty-eight days for failing to appear at an omnibus hearing, (b) eighteen days arguing over his indigency status, and (c) 164 days resulting horn a continuance he requested.

       He later testified that, upon reflection, he did not think he agreed to let police come to his door and to enter for a search.

       The Eighth Circuit construed § 5-55-104’s predecessor, Ark. Stat. Ann. § 41-4410 (Cum. Supp. 1983), but the relevant provisions read the same.


author: Donald L. Corbin, Justice.

text:
    CRAWFORD & LEWIS v. BOATMEN’S TRUST COMPANY of Arkansas, Inc., Formerly Known as Worthen National Bank of Arkansas, as Trustee of the Mae M. Stacy Trust; and Polly Stacy
    98-1520
    1 S.W.3d 417
    Supreme Court of Arkansas
    Opinion delivered October 7, 1999

      Joel Taylor, for appellant/cross-appellee.

      Wright, Lindsey & Jennings LLP, by; Judy Simmons Henry and Phyllis M. McKenzie, for appellee/cross-appellant.
   Donald L. Corbin, Justice.

Appellant Crawford & Lewis, a Louisiana law firm, appeals the order of the Pulaski County Chancery Court denying its petition for attorney’s fees and disgorging fees previously paid to it by the Mae M. Stacy Trust. For reversal, Crawford & Lewis argues that the chancellor abused her discretion by failing to award its requested fees and by disgorging fees previously paid. Appellee Boatmen’s Trust Company of Arkansas (Boatmen’s), has filed a cross-appeal on the issue of attorney’s fees to be awarded in defense of Crawford & Lewis’s petition. Boatmen’s also seeks confirmation from this court regarding the chancellor’s award of postjudgment interest on the fees disgorged from Crawford & Lewis. This case was certified to us from the Arkansas Court of Appeals pursuant to Ark. Sup. Ct. R. 1 -2 (d). We affirm.

I. Facts and Procedural Fdistory

The record in this case reveals the following facts. On December 14, 1995, Crawford & Lewis filed a petition in chancery court seeking an award of attorney’s fees in the amount of $38,780.19, for services rendered on behalf of the Mae M. Stacy Trust. Boatmen’s and Polly Stacy, the sole beneficiary of the trust, filed objections to the petition for fees. Boatmen’s also filed a cross-claim arguing that the trust was “entitled to a disgorgement of all fees and expenses previously paid by it to Crawford & Lewis [.]” A four-day hearing was held on these issues and the chancellor denied Crawford & Lewis’s petition for attorney’s fees, but granted Boatmen’s cross-claim that $16,608.89 in fees previously paid to the firm be disgorged. In order to understand the issues raised on appeal, it is necessary to set forth the facts of the underlying transactions that led to this fee dispute.

The trust was established in 1971 naming Polly Stacy as the sole income beneficiary. Floyd Richardson Jr. was named as the sole residuary beneficiary of the trust, as well as a co-trustee with Boatmen’s. The trust granted Richardson tie-breaking authority in the event of a dispute with the other trustee. Beginning around 1992, an acrimonious relationship developed between Richardson and Boatmen’s because of a dispute over investment strategies. Utilizing his tie-breaking authority, Richardson purchased a home in Baton Rouge, Louisiana, on July 17, 1992. He used $52,500.00 worth of trust assets to make the down payment, but title to the property was placed in his and his wife’s names. Richardson and his wife occupied the home, but the trust paid the mortgage, utilities, and renovation expenses for the home. The Richardsons were represented at the closing of this property by Laura Poché, a partner in Crawford & Lewis’s firm. Three days after the closing, Poché sent Richardson a letter urging him to proceed with the transfer of title from himself to the trust. After sending this letter, Poché had no further contact with Richardson for over a year.

In July 1993, Richardson entered into a lease-purchase contract with Dr. Lawrence Goldberg to sell the Louisiana home. Goldberg paid $45,000.00 as a down payment, and Richardson used the money to open a separate account with Merrill Lynch rather than depositing the funds with the custodial trustee. The record indicates that Richardson spent the $45,000.00 for personal purposes. After entering into this agreement with Goldberg, Richardson again contacted Poché requesting that she draft a separate lease agreement for Goldberg. Poché spent several months attempting to draft a lease with terms agreeable to Goldberg but was never successful. The fees resulting from this work were billed to, and paid by, the trust. Even though the parties were unable to agree on lease terms, they did agree to a sale of the property to Goldberg. Prior to selling the property to Goldberg, Richardson requested that Poché transfer title from him to the trust, and then transfer title to Goldberg. Again, the attorney’s fees that accrued as a result of this transaction were paid by the trust.

Goldberg financed part of the purchase price through Ford Credit; Boatmen’s agreed to carry a note on the remaining balance. Goldberg defaulted on the notes and ultimately filed bankruptcy in August 1994. Goldberg’s bankruptcy trustee filed an adversary proceeding against the trust and Richardson, personally, alleging fraud in the sale of the home and seeking to recover the $45,000.00 Goldberg paid to Richardson. Crawford & Lewis filed a motion to dismiss on behalf of Richardson, but filed an answer on behalf of the trust. After determining that Richardson was being sued in his individual capacity, Crawford & Lewis ceased representation of Richardson, personally, but continued to represent him in his capacity as co-trustee.

Concerned that Crawford & Lewis was putting Richardson’s personal interests before the best interests of the trust, Boatmen’s sought to obtain independent counsel in the suit against Goldberg. On April 28, 1995, the chancellor issued an order instructing Crawford & Lewis to provide a status report on the case and to halt all activity on behalf of the trust. The order further authorized Boatmen’s to obtain independent bankruptcy counsel in Louisiana if needed; Boatmen’s then retained David Rubin. Poché submitted the status report as requested, but asserted that the chancery court lacked jurisdiction to compel her to cease representation on behalf of the trust. Poché refused to turn over her files to Rubin and continued to represent the trust in the Goldberg bankruptcy matter on behalf of Richardson, as co-trustee, while Rubin represented Boatmen’s in the Goldberg action.

Richardson soon filed his own bankruptcy action in Louisiana, and, in the summer of 1995, Boatmen’s filed a motion to have Richardson removed as co-trustee. At the removal hearing before the Louisiana bankruptcy court, Poché voluntarily testified on Richardson’s behalf regarding his actions as trustee, and her firm’s representation of the trust in various matters. The bankruptcy court found that Richardson had engaged in extensive self-dealing as co-trustee, and it entered judgment in favor of the trust in the amount of $147,417.89 and removed Richardson as co-trustee. During its oral ruling on September 28, 1995, the bankruptcy court made the following comments regarding Ms. Poché’s representation of Richardson:

Ms. Poché needs a little seasoning. Ms. Poché never understood what she was doing. Ms. Poché doesn’t understand that a lawyer cannot close her eyes and say anything I’m told to do is okay because of the veto power.
Here we have classic self-dealing which fooled or at least confused the lawyer to the extent that the lawyer took four-and-a-half months before the lawyer communicated to the co-trustee about anything that was going on. And why? The explanation is, why; because I was representing Mr. and Mrs. Richardson, they were the record owners, but they were buying it and acting as co-trustee for the trust.

After Richardson was removed as co-trustee, Crawford & Lewis ceased representation of the trust and subsequently filed a motion for attorney’s fees with the Arkansas chancery court. Interestingly, Crawford & Lewis also filed a proof of claim against Richardson’s bankruptcy estate for the exact amount of fees it sought from the trust.

In denying Crawford & Lewis’s motion for fees and ordering the firm to disgorge fees previously paid, the chancellor set forth very specific findings of fact and conclusions of law. The chancellor’s order relied on the factors enumerated by this court in determining when an award of attorney’s fee is reasonable. Those factors include, but are not limited to, the time devoted by the law firm; the ability, skill, and competence of counsel; the nature and extent of services rendered; the results obtained, amount of recovery, and benefit to the trust; and, adequate compensation for competent attorneys and fees awarded in similar cases. See Rahat v. Golmirzaie, 332 Ark. 569, 966 S.W.2d 883 (1998). The chancellor also considered the undisclosed conflicts of interests present in Crawford & Lewis’s representation of the trust, as well as the firm’s violation of the chancellor’s prior order to cease its representation of the trust. Citing her extensive knowledge of the trust, its assets, and the attorneys and parties involved, the chancellor ultimately found that most, if not all, of the services rendered in connection with the fee application were rendered primarily for the benefit of the Richardsons, individually, and not the trust, and therefore should not be compensable by the trust.

II. Points on Appeal

For reversal of the chancellor’s ruling, Crawford & Lewis argues that there is no basis in fact or in law for the disgorgement of fees or the denial of their motion for additional fees. Crawford & Lewis asserts that the chancellor erroneously relied upon misstatements by Boatmen’s witnesses and counsel. Crawford & Lewis argues further that there was no evidence to support a finding that a conflict of interest existed in its representation of the trustees. We disagree with Appellant that there is no basis in fact or law to support the chancellor’s order and therefore affirm her decision.

We review chancery cases de novo on the record, but we will not reverse a finding of fact by the chancellor unless it is clearly erroneous. Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Saforo & Assocs., Inc. v. Porocel Corp., 337 Ark. 553, 991 S.W.2d 117 (1999); RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). In setting the amount of fees awarded, it is well settled that the chancellor is in a better position to evaluate counsel’s services than an appellate court, and, in the absence of clear abuse, the chancellor’s award of an attorney’s fee will not be disturbed on appeal. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987).

In its counterclaim, Boatmen’s asked the chancellor to disgorge the fees previously paid by the trust to Crawford & Lewis. Boatmen’s apparently relied on federal law in support of its counterclaim, as federal bankruptcy courts have recognized a remedy for the disgorgement of attorney’s fees. See In Re Coones Ranch, Inc., 1 F.3d 740 (8th Cir. 1993); In Re Sauer, 222 B.R. 604 (8th Cir. BAP 1998). Arkansas courts have not recognized the term “disgorgement.” This court, however, has recognized a remedy for debarring an attorney from collecting compensation as a result of representing conflicting interests. Our decisions visiting this issue have cited to the opinion of Judge Learned Hand in Silbiger v. Prudence Bonds Corp., 180 F.2d 917 (2nd Cir. 1950), which states in relevant part:

Certainly by the beginning of the Seventeenth Century it had become a common-place that an attorney must not represent opposed interests; and the usual consequence has been that he is debarred from receiving any fee from either, no matter how successful his labors. Nor will the court hear him urge, or let him prove, that in fact the conflict of his loyalties has had no influence upon his conduct; the prohibition is absolute and the consequence is a forfeiture of all pay.

Id. at 920-21 (footnotes omitted). See Sikes v. Segers, 266 Ark. 654, 662-63, 587 S.W.2d 554, 558 (1979); American-Canadian Oil & Drilling Corp. v. Aldridge & Stroud, 237 Ark. 407, 410, 373 S.W.2d 148, 150 (1963). Similarly, the United States Supreme Court held that where a party was serving more than one master or was subject to conflicting interests, he should be denied compensation. Woods v. City Bank Co., 312 U.S. 262, 268 (1941). The Court went on to state that it is no answer to say that fraud or unfairness was not shown to have resulted.

In the present case, Crawford & Lewis attempts to argue that its prior representation did not result in harm to the trust. This argument fails for two reasons. First, the trust did suffer harm as a result of the law firm’s blind representation of Richardson’s interests. Particularly, the trust assets were depleted in order to pay attorney’s fees for services that benefitted Richardson, and not the trust. Second, in light of the Supreme Court’s decision in Woods, 312 U.S. 262, the argument that no harm resulted is irrelevant. The important consideration is that Crawford & Lewis was representing two parties whose interests were diverse.

Similarly, we are not persuaded by Crawford & Lewis’s argument that their representation of Richardson and the trust did not create a conflict of interest. Crawford & Lewis’s reliance on American-Canadian, 237 Ark. 407, 373 S.W.2d 148, is misplaced as it fails to recognize an important distinction between the situation in American-Canadian and the present matter. In the prior case, the evidence indicated and this court determined that the interests of the note maker and the note holder were never adverse. Here, however, the chancellor correctly found that the evidence established that the interests of Richardson and Boatmen’s were extremely adverse. Indeed, the record reflects that almost from the beginning of its representation of these parties, Crawford & Lewis had notice that the relationship between Richardson and Boatmen’s was acrimonious. A prime example of this was when Pdchardson sought to have the trust purchase the first note on the Louisiana house after Goldberg had defaulted, and Boatmen’s repeatedly resisted such efforts. Instead of determining what action was in the best interest of the trust, Crawford & Lewis continually pressed Boatmen’s to repurchase the first mortgage as Richardson desired. Clearly, under the holding in American-Canadian, Crawford & Lewis’s representation of conflicting interests results in its forfeiting of all rights to any compensation from the trust.

Crawford & Lewis’s attempt to argue that no conflict existed because it was representing Richardson and Boatmen’s as co-trustees is thus without merit. The services rendered by Crawford & Lewis were at the behest of Richardson. The testimony of Ms. Poché supports Boatmen’s contention that the law firm failed to adequately inform Boatmen’s of matters related to trust affairs. Crawford & Lewis’s time records reflect constant contact with Richardson, but only sporadic contact with Boatmen’s representatives. Documents introduced as exhibits in this case below prove that oftentimes Crawford & Lewis only copied the documents to Richardson, but not to Boatmen’s. Crawford & Lewis tried to explain the lack of contact with Boatmen’s by claiming that it was their belief that Richardson was in contact with Boatmen’s. This explanation, however, effectively thwarts Crawford & Lewis’s assertion that it was representing both Richardson and Boatmen’s as co-trustees.

Finally, this court has consistently held that any award of attorney’s fees should be reasonable. There are established principles which a court should use in determining the reasonableness of an attorney’s fee and, among others, those should include consideration of whether or not the actions taken by a party seeking such fees was meritorious and successful. Griffin v. First Nat’l Bank, 318 Ark. 848, 888 S.W.2d 306 (1994). Even though this case involves the denial of fees, this principle is still applicable because the decision to deny any fees under the circumstances was entirely reasonable. Crawford & Lewis petitioned the chancellor for an award of fees for services rendered to the detriment of the trust, and to the benefit of Richardson, who had long been defrauding the trust. Because the chancellor determined that a conflict of interest existed, and our case law supports a denial of fees in such situations, we cannot say that the chancellor clearly erred in ordering that the fees be returned to the trust. Furthermore, we cannot say the chancellor erred in denying Crawford & Lewis’s motion for an award of additional fees. We thus affirm the chancellor’s ruling pertaining to the points on appeal.

III. Points on Cross-Appeal

For its first point on cross-appeal, Boatmen’s argues that the chancellor inadvertently omitted any provision for attorney’s fees to the bank for its successful defense against Crawford & Lewis’s petition. Boatmen’s asserts that it submitted an itemization of its fees to the chancellor at her request and also prepared and submitted a precedent to the chancellor that included a provision awarding attorney’s fees to the bank. Boatmen’s contends further that the chancellor’s final judgment was “erroneously issued” without a provision for attorney’s fees. Boatmen’s thus urges this court to remand the matter to the chancellor for determination. We cannot reach the merits of this argument because Boatmen’s failed to submit a proper motion for fees under Ark. R. Civ. P. 54(e).

Rule 54(e) provides for the method for filing claims for attorney’s fees. The rule provides in pertinent part:

(1) Attorneys’ Fees. Claims for attorneys’ fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial.
(2) Unless otherwise provided by statute or order of the court, the motion must be filed and served no later than 14 days after entry of judgment; must specify the judgment and the statute or rule entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought. If directed by the court, the motion, shall also disclose the terms of any agreement with respect to fees to be paid for the services for which the claim is made. [Emphasis added.]

The record reflects that the chancellor’s order was entered on July 1, 1998, and that Boatmen’s motion was filed on July 13, 1998. Thus, the motion was timely filed under the rule. The motion does not, however, recite the specific statute or rule entitling Boatmen’s to the claimed fees. Crawford & Lewis asserts that Boatmen’s failure to state any legal basis for the fees is fatal to its argument on appeal. We agree with Crawford & Lewis.

The procedure estabhshed in Rule 54(e) is an attempt to address a recurrent source of litigation — disputes involving the award of attorney’s fees. Subsection (e) (2) particularly sets forth requirements that create uniformity in the way such claims must be addressed. It requires that the motion be filed within a specified time period and further requires that the legal basis for the claim be specified. This court has consistently held that in determining whether a statute’s provisions are mandatory or merely directory, we adhere to the principle that those things which are of the essence of the thing to be done are mandatory, while those not of the essence are directory only. Fulmer v. State, 337 Ark. 177, 987 S.W.2d 700 (1999); McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991); Taggart & Taggart Seed Co., Inc. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983). Clearly, the requirement that the motion contain the specific rule or statute providing for attorney’s fees is the essence of the thing to be done by the rule. Accordingly, because Boatmen’s failed to comply with the specific dictates of Rule 54(e)(2), we will not reach the merits of its argument on appeal.

Boatmen’s second point on cross-appeal is more of a request than an argument. Indeed, Boatmen’s states in its reply brief that it merely seeks this court’s confirmation that the interest awarded by the chancellor on its counterclaim for disgorgement began to accrue at the time the order was entered. The order reflects that “the counterclaim by Boatmen’s as Trustee for a judgment against Crawford & Lewis in an amount equal to the fees and expenses previously paid of $16,608.89 and post judgment interest at the highest rate allowed by law is hereby granted and such judgment is entered against Crawford & Lewis.” (Emphasis added.) Because Boatmen’s does not seek anything more than was received in the trial court, its argument is not a proper matter for cross-appeal. See Aycock Pontiac, Inc. v Aycock, 335 Ark. 456, 983 S.W.2d 915 (1998).

       Since the trust was established, Boatmen’s has undergone several changes in ownership. It began as Worthen National Bank of Arkansas. At the time the action was brought in the chancery court, Worthen had been purchased by Boatmen’s. Since that time, however, Boatmen’s was purchased by NationsBank and was finally merged with Bank of America.


text:
    Jimmy Don WOOTEN v. STATE of Arkansas
    CR 98-73
    1 S.W.3d 8
    Supreme Court of Arkansas
    Opinion delivered October 7, 1999

      James O. Clawson, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Jimmy Don Wooten was convicted in the Pope County Circuit Court of capital murder, criminal attempt to commit murder, and aggravated assault. He was sentenced to death by lethal injection, thirty years’ and six years’ imprisonment, respectively. This court affirmed the judgment of conviction in Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996), cert. denied, 117 S. Ct. 979 (1997). Subsequent to this court’s decision, Wooten filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. The trial court denied the petition, and Wooten appeals. For reversal, Wooten argues that the trial court erred in denying the petition without first holding a hearing on the matter. Our jurisdiction of this appeal is pursuant to Rule 37 and Ark. Sup. Ct. R. 1-2(a) (8). We reverse.

The pertinent facts were set out in the first appeal of this matter:

On August 5, 1994, David LaSalle, Henry Teb Porter, and Molly Porter were hiking on a forest trail near the Long Pool recreation area in Pope County when they encountered appellant Jimmy Don Wooten. Wooten was riding a six-wheel all-terrain vehicle. At trial, Henry Porter testified that the group had three encounters with Wooten before he attacked them and shot David LaSalle. LaSalle died as a result of a single gunshot wound to the head. Porter also testified that Wooten shot him in the shoulder, forearm, and face, and that he was able to remove the key from Wooten’s all-terrain vehicle before Wooten chased him into the woods. Molly Porter, Henry Porter’s daughter, testified that Wooten shot LaSalle and shot her father and chased after him.
On the day of the shooting, Wooten reported that an assailant who looked just like him had stolen his six-wheel vehicle while he was fishing near Long Pool and had shot at him using the .22-caliber pistol he had in the vehicle. Wooten claimed that he later found the vehicle with the gun abandoned by the side of the road near his truck. A .22-caliber bullet was recovered from David LaSalle’s body. It was determined that Wooten’s gun fired a spent .22-caliber cartridge found at the location where LaSalle and Porter were shot. In addition, swimming trunks found at Wooten’s home matched Henry and Molly Porter’s description of trunks worn by the assailant.

Wooten, 325 Ark. at 513, 931 S.W.2d at 409.

Following his conviction, Wooten filed a petition under Rule 37, alleging numerous instances in which his trial counsel had been ineffective. In its response, the State asserted that Wooten’s petition should be denied because (1) it did not contain specific allegations of how counsel’s alleged errors resulted in prejudice to Wooten, and (2) some of the grounds do not contain sufficient facts to determine whether a hearing was warranted. The trial court denied the petition. The trial court’s order reflects:

1. That said petition should be, and hereby is denied.
2. That petitioner’s grounds for relief, specifically grounds 4A through K, G1 and G2, do not present any allegations of prejudice. That ail of the above mentioned grounds do not present any factual allegations sufficient to determine whether a hearing is necessary.
3. That the Court adopts as its [sic] finds the response and arguments of the State of Arkansas to the Petition for Relief Under Arkansas Rules of Criminal Procedure, Rule 37.

On appeal, Wooten contends that the petition provided specific facts and sufficient details to support the allegations of error. He thus contends that the trial court erred in denying the petition without a hearing. While we do not agree that a hearing is necessarily warranted, we conclude that the trial court erred in faffing to make written findings in support of its denial of the petition.

Rule 37.3 provides in pertinent part:

(a) If the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court’s findings.
(c) When a petition is filed in the circuit court and the court does not dispose of the petition under subsection (a) hereof, the court shall cause notice of the filing thereof to be served on the prosecuting attorney and the petitioner’s counsel of record at the trial court level; and on the petition the court shall grant prompt hearing with proceedings reported. [Emphasis added.]

This court has previously interpreted the foregoing rules to “provide that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief.” Bohanan v. State, 327 Ark. 507, 510, 939 S.W.2d 832, 833 (1997) (per curiam) (citing Schneider v. State, 290 Ark. 454, 720 S.W.2d 709 (1986)). The trial court need not hold an evidentiary hearing where it can be conclusively shown on the record, or the face of the petition itself, that the allegations have no merit. Id.; Smith v. State, 290 Ark. 90, 717 S.W.2d 193 (1986). Where the trial court concludes, without a hearing, that the petitioner is not entitled to relief, Rule 37.3(a) requires the trial court to make written findings specifying the parts of the record that form the basis of the trial court’s decision. Bohanan, 327 Ark. 507, 939 S.W.2d 832; Smith v. State, 300 Ark. 291, 778 S.W.2d 924 (1989). If the trial court fails to make such findings, it is reversible error, unless the record before this court conclusively shows that the petition is without merit. Bohanan, 327 Ark. 507, 939 S.W.2d 832. In short, while this court has affirmed the denial of Rule 37 petitions notwithstanding the trial court’s failure to make written findings as required by Rule 37.3(a), we have done so only where it can be determined from the record that the petition is wholly without merit or where the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted. Bilyeu v. State, 337 Ark. 304, 987 S.W.2d 277 (1999) (per curiam) (citing Long v. State, 294 Ark. 362, 742 S.W.2d 942 (1988); Smith, 290 Ark. 90, 717 S.W.2d 193; Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979)).

Rule 37.5, which became effective on August 1, 1997, provides the method for pursuing postconviction relief in death-penalty cases. Like Rule 37.3, Rule 37.5 provides that the trial court may decide the merits of a postconviction petition with or without holding a hearing. Rule 37.5(i) provides, in part, that if no hearing is held, the trial court shall “make specific written findings of fact with respect to each factual issue raised by the petition and specific written conclusions of law with respect to each legal issue raised by the petition.” Rule 37.5 evolved from Act 925 of 1997, now codified at Ark. Code Ann. §§ 16-91-201 to -206 (Supp. 1999), where the General Assembly expressly noted that the intent of the Act is to comply with federal law by instituting a comprehensive state-court review. See section 16-91-204; Porter v. State, 332 Ark. 186, 964 S.W.2d 184 (1998) (per curiam). The purpose of a meaningful state review is to eliminate the need for multiple federal habeas corpus proceedings in death cases. Id. Thus, “in death cases where a Rule 37 petition is denied on procedural grounds, great care should be exercised to assure that the denial rests on solid footing.” Id. at 188-89, 964 S.W.2d at 185. Though Wooten received the death penalty, Rule 37.5 does not govern his postconviction review, as it came into effect after he became eligible to file a petition under Rule 37.2(c). See Rule 37.5(k). Nonetheless, we believe that the intent and purpose of that rule reinforces the responsibility of the trial court to make specific written findings and conclusions of law on each issue raised in the petition.

As can be seen from the order denying Wooten’s petition, the trial judge did not comply with Rule 37.3(a), as he did not make any written findings in his order and did not specify what parts of the files or record were relied upon in denying Wooten’s petition. Without these findings, we are unable to affirm because the record before us, which primarily consists of Wooten’s petition, the State’s response, and the trial court’s order, does not conclusively show that the petition is without merit. Nor are we able to say that it is conclusive from the face of the petition that no relief is warranted. Moreover, we cannot tell from the record on appeal whether the trial court had an opportunity to review the trial record. It may be that the record of Wooten’s trial, which is not before us, supports the trial court’s denial of the petition. If this is the case, the trial court must state its reliance on the trial record in its order. Accordingly, we reverse and remand the case to the trial court for the written findings required by Rule 37.3(a), and if additional evidence, beyond what is contained in the trial record, is needed to make these findings, an evidentiary hearing should be held pursuant to Rule 37.3(c).