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

text:
    Eric Randall NANCE v. STATE of Arkansas
    CR 94-413
    891 S.W.2d 26
    Supreme Court of Arkansas
    Opinion delivered November 21, 1994

      Larry W. Horton, for appellant.
    No response.
   Per Curiam.

On March 31, 1994, appellant was convicted of capital murder and sentenced to death. On April 11, 1994, an amended judgment was filed to correct the original judgment, and on this same date, appellant moved for a new trial, a hearing was held, and the trial court denied appellant’s motion. No written order denying the motion was entered. Nonetheless, appellant filed his notice of appeal on April 18, 1994. Appellant tendered his transcript with the supreme court clerk on October 6, 1994, but the clerk rejected it. The reason for rejection was that appellant’s notice of appeal was invalid since the April 11, 1994 new trial order appealed from was never filed or entered.

The clerk acted in accordance with our rules and case law. In Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992), we stated the following:

“We cannot accept appellant’s appeal because our procedural rules, in particular ARCP Rule 58 and the amendments to Ark. R. App. P. 4, clearly indicate that an appeal filed prior to entry of final judgment is ineffective.
ARCP Rule 58 provides in part:
Every judgment or decree shall be set forth on a separate document. A judgment or decree is effective only when so set forth and entered as provided in Administrative Order No. 2.
Administrative order No. 2 provides for the act of filing orders and judgments in the docket book. In Standridge v. Standridge, 298 Ark. 494,769 S.W.2d 12 (1989), we relied on Rule 58 to hold that a decree that had been announced from the bench did not become effective until the date of filing. The purpose of Rule 58 was to provide a definite point at which a judgment, be it a decree of divorce or other final judicial act, becomes effective. The rule tells clearly what that point is. Id. at 498, 769 S.W.2d at 14. Reporter’s Note 4 to Rule 58 explains the rule’s significance for appeal purposes:
This rule provides that a judgment or decree shall not be effective unless and until it is entered pursuant to [Administrative Order No. 2], Thus for appeal purposes, the date of entry or filing of the judgment or decree is the effective date, as opposed to the date of rendition.”

Under Ark. R. Crim. P. 36.9(a)(2), the time for taking an appeal is within thirty days from the date of entry of an order denying a post-trial motion under Ark. R. Crim. P. 36.22. As we first decided in Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989), and reaffirmed in Kelly above, the trial judge’s decision from the bench denying appellant’s motion does not become effective until the date of filing. In Ark. R. Crim. P. 36.9(b), as amended by per curiam on January 31, 1994, this court provided that a notice of appeal is invalid if it is filed prior to the entry of the judgment or order appealed from. Here, no order denying appellant’s request for new trial was ever filed, so appellant’s notice of appeal was invalid. In addition, we note that, under Rule 36.9(a)(3) and (b), appellant’s April .11 post-trial motion would otherwise have been deemed denied on May 11, 1994, therefore, his April 18, 1994 notice of appeal would be invalid and ineffective as premature.

Appellant’s attorney shall file within thirty days from the date of this per curiam a motion in this case accepting full responsibility for not timely filing the notice of appeal and transcript, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

Hays and Brown, JJ., dissent.

Robert L. Brown, Justice,

dissenting. I would grant the motion and not send the names of the defense attorneys to the Professional Conduct Committee.

The majority opinion avoids the issue at hand which is the effectiveness of the notice of appeal with respect to the original judgment of conviction. The notice of appeal was filed on April 18, 1994, within 30 days of both the entry of the judgment of conviction for capital murder and the assessment of the death penalty (March 31, 1994) and the entry of the amended judgment (April 11, 1994). That is what our criminal rules contemplate. Ark. R. Crim. P. 36.9(a) reads:

(a) Within thirty (30) days from
(1) the date of entry of a judgment; or
(2) the date of entry of an order denying a post-trial motion under Rule 36.22; or
(3) the date a post-trial motion under Rule 36.22 is deemed denied pursuant to Rule 4(c) of the Rules of Appellate Procedure; or
(4) the date of entry of an order denying a petition for postconviction relief under Rule 37, the person desiring to appeal the judgment or order shall file with the trial court a notice of appeal identifying the parties taking the appeal and the judgment or order appealed.

These timeframes are in the alternative. Thus, to appeal from the original judgment of conviction the notice of appeal must be filed within 30 days. To appeal from a judgment of conviction and denial of post-trial motions, additional timeframes are spelled out in Rule 36.9(a).

The majority focuses on Ark. R. Crim. P. 36.9(b) which reads:

(b) A notice of appeal is invalid if it is filed prior to the entry of the judgment or order appealed from or if it is filed on or before the date a post-trial motion under Rule 36.22 is deemed denied pursuant to Rule 4(c) of the rules of Appellate Procedure.

I interpret subsection (b) to invalidate a premature notice of appeal taken from a denial of the post-judgment motion, but not to invalidate a notice of appeal timely taken from the judgment of conviction itself. Again, the time limitations in Rule 36.9(a) are in the alternative with respect to appeals from the original judgment of conviction.

At worst, our rules are ambiguous on whether the notice of appeal in this case is effective for an appeal solely from the judgment of conviction. If our rules are ambiguous, we need clarification on this point in both our civil and criminal appellate rules. That ambiguity, however, should not work against practicing attorneys and subject them to scrutiny by the Professional Conduct Committee. Our appellate procedure is fraught now with a Gordian Knot complexity. This same issue has been raised several times in the last few weeks. See, e.g., Lawrence Bros., Inc. v. R.J. “Bob” Jones Excavating Contractor, Inc., 318 Ark. 328, 884 S.W.2d 620 (1994); Cason v. House, motion for rule on the clerk denied (94-759 Oct. 3, 1994). Our interpretation of our appellate rules should be to facilitate appeals, not to thwart them.

1 respectfully dissent.

Hays, J., joins.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Clarence E. MIXON v. STATE of Arkansas
    94-1013
    887 S.W.2d 307
    Supreme Court of Arkansas
    Opinion delivered November 21, 1994

      Appellant, pro se.
    No response.
   Per Curiam.

Appellant Clarence E. Mixon, who is in the custody of the Arkansas Department of Correction as a result of multiple felony convictions, filed a pro se petition for writ of declaratory judgment against the Arkansas Board of Parole and Community Rehabilitation, contending that the board had unfairly denied him a parole hearing. The petition was denied, and the record has been lodged in this court on appeal. Appellant now seeks appointment of counsel and an extension of time to file the appellant’s brief.

Challenges relating to parole matters are civil in nature, and there is no absolute right to appointment of counsel in civil matters. See Virgin v. Lockhart, 288 Ark. 92, 702 S.W.2d 9 (1986). We have held, however, that if an appellant makes a substantial showing that he is entitled to relief and that he cannot proceed without counsel, we will entertain a motion for counsel. Howard v. Lockhart, 300 Ark. 144, 777 S.W.2d 223 (1989). We have adopted a similar practice with respect to handwritten briefs by pro se appellants. Glick v. Lockhart, 288 Ark. 417, 706 S.W.2d 178 (1986).

As the appellant here has offered no showing that there is any merit at all to the appeal, the request that counsel be appointed is denied. The date for filing the appellant’s brief is extended to thirty days from the date of this opinion.

Motion denied in part and granted in part.


text:
    Todd TAYLOR v. STATE of Arkansas
    CR 94-1188
    887 S.W.2d 308
    Supreme Court of Arkansas
    Opinion delivered November 21, 1994

      David R. Bridgforth, for appellant.
    No response.
   Per Curiam.

Todd Taylor, by his attorney, has filed a motion for a rule on the clerk.

His attorney, David R. Bridgforth, admits in his motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    Teri BATES and Kelli Ogden v. Andre E. McNEIL, Chancery Judge
    94-74 94-84
    888 S.W.2d 642
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994

      Central Arkansas Legal Services by: Sandra A. DeBoer and Griffin J. Stockley, for appellants.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The petitioners, Teri Bates and Kelli Ogden (Woodruff), ask this court to issue a writ of prohibition against the respondent, Faulkner County Chancellor Andre E. McNeil, and in their petitions allege that the chancellor was wholly without jurisdiction to order that they be taken into custody by the Sheriff of Faulkner County. We granted Ms. Bates’s request for temporary stay on January 31, 1994, and granted Ms. Ogden’s kindred request on February 14, 1994, allowing all parties to brief the issue. Later, we permitted the petitioners to consolidate their pleadings since they presented the same question. Finding the trial court exceeded its jurisdiction, we treat the parties’ petition as one of certiorari and grant the writs in their favor.

On March 10, 1992, Petitioner Kelli Ogden (now Woodruff) filed a petition in Faulkner County Chancery Court for an order of protection on behalf of herself against her husband, Bobby Ogden, alleging that he had threatened her life. After being assigned to Chancellor Andre E. McNeil’s division, no further proceedings were had on the case.

On August 3, 1992, Petitioner Teri Bates filed a petition for an order of protection on behalf of herself and her minor children in Faulkner County Chancery Court against J.T. Bates, alleging domestic abuse, and later on the same date, the respondent, Chancellor Andre E. McNeil, issued an ex parte temporary order of protection. Following a hearing, the chancellor entered an order of protection on August 12, 1992, in which Ms. Bates was assessed and ordered to pay $84.25 in court costs within thirty days.

Nothing further transpired with reference to either petitioner until December 10, 1993, when the chancellor entered separate written orders for Ms. Bates and Ms. Ogden to appear in his court to show cause why each should not be held in contempt. The orders also directed that the sheriff take both parties into custody and keep them safely to appear on January 12, 1994, and provided that they could be admitted to bail upon each posting a $200 cash bond. The only difference in the two orders lay in the alleged basis for the contempt charge: Ms. Ogden had allegedly abused the court’s process by causing the clerk to file a petition for order of protection without having completed the application process for obtaining the order, while Ms. Bates allegedly failed to pay court costs as ordered. Apparently, neither of these two orders were served, as identical orders were issued on January 13, 1994, again directing the sheriff of Faulkner County to take the respective parties into custody and keep them safely to appear before the court on March 30, 1994, unless the parties posted cash bonds in the amount of $200.00 each. A search of the record fails to reveal a return of these orders by the sheriff.

The petitioners have requested relief from the chancellor’s orders to take them into custody of the Faulkner County Sheriff by way of a writ of prohibition. A more appropriate remedy exists in certiorari, for we have said that a writ of prohibition cannot be invoked to correct an order already entered, Wasson v. Dodge, 192 Ark. 728, 94 S.W.2d 720 (1936), and where, as here, the lower court’s order has been entered without or in excess of jurisdiction, we can carve through the technicality and treat the application as one for certiorari. Arkansas Dep’t of Human Servs. v. Templeton, 298 Ark. 390, 769 S.W.2d 404 (1989); Wasson, supra.

We discussed certiorari at length in Skokos v. Gray, No. 94-952 (November 7, 1994), and Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129 (1988), referencing our holding in State v. Nelson, 246 Ark. 210, 438 S.W.2d 33 (1969):

Certiorari lies to correct proceedings erroneous upon the face of the record when there is no other adequate remedy. It is available in the exercise of superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided. Certiorari lies where there is a want of jurisdiction or an act in excess of jurisdiction which is apparent on the face of the record. It is not available to look beyond the face of the record to ascertain the actual merits of a controversy, to control discretion, to review a finding upon facts or review the exercise of a court’s discretionary authority.

Granted, disobedience of any valid order of a court having jurisdiction to enter it may constitute contempt, punishment for which is an inherent power of the court. Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991). It is also true that we basically review contempt proceedings under the rules and statutes pertaining to appeals, not by certiorari, as stated in Frolic Footwear, Inc. v. State, 284 Ark. 487, 683 S.W.2d 611 (1985). Here, however, we are confronted with a situation in which the chancellor has issued his orders citing the parties to show cause why they should not be held in contempt, while at the same time ordering them to be held in custody until the time set for their hearing unless released ■ on a preset bond.

In Foreman v. State, 317 Ark. 146, 875 S.W.2d 853 (1994), we issued a writ of certiorari to require the trial judge to reconsider his setting of an appearance bond. We determined that the remedy of an appeal would have been useless because the petitioner would have had to remain incarcerated until tried without proper consideration of his request for release on bond, and granted certiorari where there was no other remedy or effective means of review. The same can be said here — an appeal would be useless as the parties could remain incarcerated until the time for their hearing, unless they were able to pay the cash bonds. In short, certiorari is the proper remedy.

The chancellor submits that his power to order Ms. Bates’s and Ms. Ogden’s arrests and custody in this situation is provided in Ark. Code Ann. § 16-10-106 (1987), which states that:

[a]ll courts shall have the power to issue all writs and process which may be necessary in the exercise of their respective jurisdiction, according to the principles and usages of law.

Yet, the chancellor, in exercising his authority, makes no mention of Ark. Code Ann. § 16-10-108(c) (1987), which provides that:

[cjontempts committed in the immediate view and presence of the court may be punished summarily. In other cases, the party charged shall be notified of the accusation and shall have a reasonable time to make his defense.

(Emphasis added.)

Although Ark. Code Ann. § 16-10-106 provides that all courts shall have the power to issue process which may be necessary in the exercise of their respective jurisdictions, it does not provide the trial court with carte blanche authority to issue orders of body attachment, detention, and custody, while ignoring portions of statutory provisions relating to contempt proceedings, and without affording procedural protections of due process of law to the parties being placed in arrest and custody. It is axiomatic that “fundamental requirements of due process require the opportunity to be heard at a meaningful time and a meaningful place before a person can be deprived of life, liberty, or property.” Franklin v. State, 267 Ark. 311, 590 S.W.2d 28 (1979).

Our rationale in Franklin closely resembles the United States Supreme Court’s recognition in Young v. United States ex. rel. Vuitton et Fils S.A., 481 U.S. 787, 800 (1987), in response to out-of-court contempts, that “contempt proceedings are sufficiently criminal in nature to warrant the imposition of many procedural protections.” The chancellor argues that the contempts of court allegedly committed by Ms. Bates and Ms. Ogden were “indirect criminal commissions and therefore crimes,” and cites the United States Supreme Court case of U.S. v. Dixon, 113 S. Ct. 2849 (1993), in support of his position that under our statutes, he is vested with the authority to issue orders of arrest and detention subject to the parties’ release on bond — the same as in a criminal case. We cannot agree that, at this juncture, Ms. Bates and Ms. Ogden are charged with “crimes”; however, they are the subjects of contempt proceedings which are criminal in nature and should be treated as such.

In Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988) we made note that the substantive difference between civil and criminal contempt often becomes blurred and that the purpose of a criminal contempt proceeding is to preserve the power and vindicate the dignity of the court and to punish for disobedience of its order. Civil contempt proceedings, on the other hand, are to be instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of those parties. Where the contempt proceedings are of a criminal nature, the alleged contemnors should be afforded the protections that the constitution requires in criminal proceedings. Fitzhugh v. State, supra.

Our rules of criminal procedure serve as a useful guideline for procedural protections in this instance. Rule 8.1 provides that a detained person shall be taken before a judicial officer without unnecessary delay. This rule was designed to afford an arrestee protection against an unfounded invasion of liberty and privacy. See Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978), rev’d on other grounds, 267 Ark. 504, 593 S.W.2d 156 (1980). Rule 9 provides that a judicial officer shall set money bail only after he determines that no other conditions will ensure the appearance of a defendant in court. The rule further provides that, if it is determined that money bail should be set, the judicial officer should, in determining the amount of bail, take into account all facts relevant to the risk of wilful nonappearance of the party. Here, neither Ms. Bates nor Ms. Ogden were afforded an opportunity to be heard at a meaningful time or a prompt first appearance. Instead, they were ordered arrested and held for a show cause hearing on a date more than thirty days later in the first orders, and on a date more than sixty days later in the second orders, unless they posted a $200 cash bond to effect their release. In setting bail, the chancellor’s orders fail to reflect that he took into consideration any facts relevant to the risk of nonappearance of the parties or the reasonableness of the amount of the required cash bond.

Suffice it to say, the court’s orders of body attachment and arrest are devoid of fundamental due process which requires that the court give the parties an opportunity to be heard at a meaningful time, and that, if bond is to be set, the court follow the spirit of our criminal rules in determining an appropriate bond.

Under the circumstances, the trial court’s orders were erroneous on their face, and for this reason, we hold the chancellor acted in excess of his jurisdiction.

Writ of certiorari granted.


text:
    Timothy O. HAMPTON v. Donna TAYLOR
    94-438
    887 S.W.2d 535
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994

      J.G. Molleston, for appellant.

      Compton, Prewett, Thomas & Hickey, P.A., by: William I. Prewett, for appellee.
   Jack Holt, Jr., Chief Justice.

This is an appeal from a summary judgment in favor of the appellee, Donna Taylor. The appellant, Timothy O. Hampton, a former stockholder and officer of GCP, Inc., filed suit against Ms. Taylor, a secretary and bookkeeper for GCP, Inc., alleging that she had made fraudulent statements to certain account debtors whose accounts had been assigned as security for a promissory note to the First National Bank of Magnolia, Arkansas, upon which Mr. Hampton was personally liable as a guarantor. Mr. Hampton asserted that Ms. Taylor’s alleged misrepresentations caused these account debtors to divert payments from the creditor bank to GCP, Inc., and further resulted in his having to pay the note when it went info default.

The Columbia County Circuit Court granted Ms. Taylor’s motion for summary judgment on the basis that the three-year statute of limitations for actions based on misrepresentation, Ark. Code Ann. § 16-56-105 (1987), barred the claim. The circuit court found that Mr. Hampton had acknowledged that the alleged misrepresentation occurred on May 3, 1989, more than three years prior to the filing of the complaint on September 22, 1993.

On appeal, Mr. Hampton argues that the trial court erred in failing to find an issue of material fact with respect to his contentions (1) that Ms. Taylor fraudulently concealed the existence of Mr. Hampton’s cause of action, and (2) that the three-year statute of limitations did not begin to run until the occurrence of the last element of the tort charged (pertaining to representations allegedly made to officers or employees of Thermal-Tec of Michigan, Inc.). Neither argument is persuasive. We affirm.

Facts

Appellant Timothy Hampton is a former stockholder and officer of a corporation known as GCP, Inc. On November 23, 1988, he executed a line-of-credit agreement, personally guaranteeing a one-year promissory note owed by GCP, Inc., to the First National Bank of Magnolia, Arkansas. Subsequently, on November 28, 1988, and on March 24, 1989, GCP, Inc., by Mr. Hampton, assigned two debts owed it, respectively, by ThermalTec of Michigan, Inc., and Triple T Roofing, Inc., to First National Bank as security for payment of the note that Mr. Hampton had guaranteed. As a result, Mr. Hampton became the beneficiary of the assignments for the purpose of paying the indebtedness guaranteed to First National Bank.

Mr. Hampton sold his 100 shares in GCP, Inc., to the corporation on May 26, 1989. As ratified in a formal agreement between Mr. Hampton and GPC, Inc., the. corporation agreed to pay him $9,487.85 in consideration for the stock transfer. The certificate representing the shares was delivered to First National Bank, which acted as escrow agent.

As an additional consideration, GCP, Inc., agreed to assume all of the indebtedness owed to First National Bank under the November 23, 1988 line-of-credit agreement, under which the corporation owed, as of May 19, 1989, the amount of $59,002.50. Further, the agreement recited that:

the Corporation and the Guarantors [stockholders Edwin S. Hall, III, and Gerald E. Taylor, Sr. (no relation to the appellee)], jointly and severally, do hereby agree to hold Hampton harmless from any liability owed to the said First National Bank pursuant to said line of credit agreement and agree to indemnify him in connection therewith. The Corporation and Guarantors will use their best efforts to have Hampton released from any personal liability for said indebtedness. The Corporation and Guarantors shall also pay to First National Bank any accounts of Hampton Industries which have been assigned to First National Bank pursuant to the aforementioned line of credit agreement and the Corporation and Guarantors do hereby agree to indemnify and hold Hampton harmless from any liability on said accounts receivable.

Provision was made for an installment-payment schedule, and Mr. Hampton agreed to transfer ownership of a tanker trailer to GCP, Inc.

On November 23, 1989, the promissory note guaranteed by Mr. Hampton came due. The note remained unpaid, and, on March 9,1990, Mr. Hampton received a demand letter from First National Bank of Magnolia, requiring payment of the line-of-credit agreement. At that time, according to an affidavit he filed on April 15, 1993, in support of his response to Ms. Taylor’s motion for summary judgment, Mr. Hampton inquired of all account debtors whose accounts had been assigned to First National Bank and discovered that Thermal-Tec of Michigan, Inc., and Triple T Roofing, Inc., had paid their accounts receivable directly to GCP, Inc., rather than to First National Bank. Upon further investigation, Mr. Hampton averred, he was advised by corporate officers of Thermal-Tec and Triple T that appellee Donna Taylor, who at the time was employed as a secretary and bookkeeper for GCP, Inc., had represented that the funds in question should be paid directly to GCP, Inc., instead of to First National Bank because the bank had been paid.

Mr. Hampton declared that, because the Thermal-Tec and Triple T accounts were paid to GCP, Inc., and not applied on the loan, which remained delinquent, he was required to satisfy the conditions of the promissory note and letter-of-credit agreement by paying the sum of $59,002.50 plus accrued interest to First National Bank of Magnolia within thirty days of receipt of the demand letter. Mr. Hampton further stated in his affidavit that, while it was possible that he had some notice that the promissory note and letter-of-credit agreement were in default on or about November 23, 1989, when the note came due, he did not recall any such notice, and the bank’s records reflected no such notice. He asserted that the earliest date on which he should have reasonably have known that the accounts had been diverted was November 23, 1989.

To recover his payment on the note, Mr. Hampton, doing business as Hampton Industries, filed a complaint against Ms. Taylor on September 22, 1992, alleging that, on or before November 23, 1989, Ms. Taylor knew or should have known that he was entitled to the benefit of the assigned Thermal-Tec and Triple T accounts and that First National Bank of Magnolia had not been paid the amounts owing pursuant to the assignments. He claimed, further, that Ms. Taylor knowingly misrepresented to officers and employees of Thermal-Tec and Triple T that the amounts owing under the assignments had been paid. Mr. Hampton asserted that, despite his due diligence, he became aware of Ms. Taylor’s misrepresentations only on or after November 23, 1989, when, contrary to the agreement between him and GCP, Inc., he was required to pay the promissory note. He alleged that Ms. Taylor had procured the use and benefit of some of the amount represented by the assignments and stated that he was entitled to compensatory damages in the amount of $24,598.50 plus pre- and post-judgment interest and punitive damages.

On December 17, 1992, Ms. Taylor filed a motion for summary judgment, stating that the answers to interrogatories provided by Mr. Hampton indicated that the alleged misrepresentations occurred on April 24, 1989 (as to Thermal-Tec), and May 3, 1989 (as to Triple T). The answers stated that, in both instances, Ms. Taylor had used words to the effect that “The bank has been paid, send payment directly to us.” Because, Ms. Taylor asserted, Ark. Code Ann. § 16-56-105 imposes a three-year statute of limitations for actions based on misrepresentation, the action, which was “clearly not supported by any factual basis,” was barred.

In his brief in support of his response to the motion for summary judgment, filed, along with his supporting affidavit, on April 15, 1993, Mr. Hampton argued that his factual basis for his complaint was that Ms. Taylor had committed the acts alleged and that he had been damaged in consequence. He urged that the five-year statute of limitations provided for in Ark. Code Ann. § 16-56-111 (1987) should apply because the misrepresentation was “inextricably linked” to the written agreement of May 26, 1989, between Mr. Hampton and GCP, Inc.

The Columbia County Circuit Court entered its order on December 28, 1993, finding, as noted earlier, that Mr. Hampton had acknowledged that Ms. Taylor’s alleged misrepresentations were made on May 3, 1989, and that the suit was filed on September 22, 1993, more than three years later, outside the bounds of Ark. Code Ann. § 16-56-105, the statute of limitations for actions based on misrepresentation. Ms. Taylor’s motion for summary judgment was granted, and Mr. Hampton’s complaint was dismissed. From that judgment, this appeal arises.

Standing

It should be noted at the outset that no argument has been advanced on the question of Mr. Hampton’s standing to assert a claim for deceit when the misrepresentations by Ms. Taylor which allegedly harmed him were directed to third parties. We address the issues actually raised by Mr. Hampton and dealt with by the trial court in its findings — i.e., fraudulent concealment and the statute of limitations. In so doing, however, we do not intend to convey an impression one way or the other regarding the appropriateness, absent the statute of limitations, of a misrepresentation claim of this nature.

Issue of material fact — fraudulent concealment

For his first point for reversal, Mr. Hampton contends that the trial court erred in failing to find an issue of material fact with respect to Ms. Taylor’s alleged fraudulent concealment of the existence of his cause of action. There is no merit in his argument.

Summary judgment is a remedy that should only be granted when there are no genuine issues of material fact to litigate and when the case can be decided as a matter of law. Birch-field v. Nationwide Insurance, 317 Ark. 38, 875 S.W.2d 502 (1994). The movant for summary judgment bears the burden of demonstrating that there is no genuine issue of material fact. Wright v. Compton, Prewett, Thomas & Hickey, P.A., 315 Ark. 213, 866 S.W.2d 387 (1993). Once the moving party makes a prima facie showing of entitlement, however, the responding party must meet proof with proof in order to demonstrate that there is remaining a genuine issue of material fact. Mount Olive Water Ass’n v. City of Fayetteville, 313 Ark. 606, 856 S.W.2d 864 (1993). The response and supporting material must set forth specific facts showing that there is a genuine issue for trial. Id.

On appeal, this court’s review is limited to examining the evidentiary items presented and determining whether the trial court correctly ruled that those items left all material facts undisputed. Hardie v. Estate of Davis, 312 Ark. 189, 848 S.W.2d 417 (1993). We review the facts in the light most favorable to the appellant and resolve all doubts and inferences against the moving party. Id.

The tort of fraud, misrepresentation, or deceit consists of five elements which must be proved by a preponderance of the evidence: (1) a false representation of a material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance on the representation; and (5) damage suffered as a result of the reliance. Roach v. Concord Boat Corp., 317 Ark. 474, 880 S.W.2d 305 (1994); Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993).

The applicable statute of limitations is the three-year period provided in Ark. Code Ann. § 16-56-105 (1987). The statutory limitation period begins to run, in the absence of concealment of the wrong, when the wrong occurs, not when it is discovered. Wright v. Compton, Prewett, Thomas & Hickey, supra. In the present case, it is undisputed that the dates on which Ms. Taylor’s alleged misrepresentations were made were April 24, 1989, and May 3, 1989. The latter date is controlling for purposes of the running of the statute of limitations.

Mr. Hampton insists that the earliest date on which he could have been apprised of the misrepresentations was November 23, 1989, when the promissory note came due. He asserts that he made “significant inquiry” of Ms. Taylor and was “provided with false information during a time well within three years prior to filing the suit.” This course of conduct, he maintains, amounted to a fraudulent act that tolled the statute of limitations. In support of his contention, he refers to the following passage from Wilson v. General Electric Capital Auto Lease, Inc., 311 Ark. 84, 87, 841 S.W.2d 619, 620-1 (1992):

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

Quoting Scroggins Farms Corp. v. Howell, 216 Ark. 569, 572-3, 226 S.W.2d 562, 565 (1950); and McKneely v. Terry, 61 Ark. 527, 545, 33 S.W. 953, 957 (1896). See also First Pyramid Life Ins. Co. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992), where the same quotation appears.

The language from Wilson and Stoltz, however, in fact bolsters Ms. Taylor’s position. There is no evidence of record that Ms. Taylor committed a “positive act of fraud.” Instead, Mr. Hampton merely stated in his answers to interrogatories that Ms. Taylor was, as the secretary for GCP, Inc., familiar with the promissory note and assignments, yet told representatives of Thermal-Tec and Triple T that “The bank has been paid, send payment directly to us.” This allegation reveals no furtive planning or secret execution of a fraudulent act to keep Mr. Hampton’s cause of action concealed. Neither does the bare assertion in Mr. Hampton’s affidavit that he had made “periodic inquiry of Ms. Taylor about the accounts receivable between May 26, 1989, and March 9, 1990, and was told that they were all in “good standing.” From the corporate perspective, the accounts receivable were indeed in good standing. Mr. Hampton’s statement in his affidavit that “Donna Taylor did not tell me that the accounts receivable assigned to the First National Bank had been paid directly to GCP, Inc., as a result of her misrepresentation” fails to establish a positive act of fraud.

Moreover, none of Mr. Hampton’s assertions satisfies the five elements of misrepresentation. His unsupported allegations simply do not prove that Ms. Taylor made a false representation of a material fact; that she knew her representations were false or that she had insufficient information on which to base them; that she intended to induce action or inaction on Mr. Hampton’s part in reliance upon her representations; that Mr. Hampton justifiably relied upon the representations; or that he suffered damage as a result of the reliance. See Roach v. Concord Boat Corp., supra.

An affidavit stating only conclusions is not sufficient to show a genuine issue of material fact. Mount Olive Water Ass’n v. City of Fayetteville, supra. Hence, no proof was submitted to the circuit court that would suffice to toll the statute of limitations. The circuit court did not err in granting summary judgment.

Statute of limitations occurrence of last element of tort

In his second point for reversal, Mr. Hampton argues that the circuit court erred in granting the motion for summary judgment because the three-year statute of limitations did not begin to run until the occurrence of the last element of the alleged tort. He urges that the relevant dates for accrual of the cause of action were, at the earliest, November 23, 1989, when the promissory note came due, and, at the latest, some point between March 9, 1990, when First National Bank made demand upon him, and April 8, 1990, when he finally paid off the note.

Mr. Hampton cites Stroud v. Ryan, 297 Ark. 472, 763 S.W.2d 76 (1989), for the principle that the statute of limitations is tolled during the time the putative plaintiff is prevented from bringing the action to which the statute of limitations applies. In that case, however, more than a year passed during which a default judgment had been set aside. For the duration of that period, this court held, “although the alleged negligent act had occurred, Stroud had no claim against Ryan, as he could have shown no injury.” Id., 297 Ark. at 474, 763 S.W.2d at 78. The Stroud case is inapplicable to the present set of circumstances. No legal mechanism prevented Mr. Hampton from filing suit.

Inapplicable, as well, is Midwest Mutual Ins. Co. v. Arkansas Nat’l Co., 260 Ark. 352, 538 S.W.2d 574 (1976), another case cited by Mr. Hampton, where this court held that a taxicab company’s cause of action against its insurance carrier accrued only after suit was filed against the taxicab company and it was obliged to assume the cost of its own defense after first learning that its carrier’s agent had negligently failed to obtain adequate coverage. In the present case, Mr. Hampton was not subjected to an action in tort.

More to the point, as noted earlier, there is no evidence of record of affirmative acts of concealment on Ms. Taylor’s part in relation to Mr. Hampton. See First Pyramid Life Ins. Co. v. Stoltz, supra. Absent active concealment, the statute of limitations is not tolled. Further, as an officer and shareholder who had knowledge of the assignments, Mr. Hampton could have discovered the effect of the alleged misrepresentations before May 26, 1989, the date on which he sold his shares in the corporation. See Wilson v. General Electric Capital Auto Lease, Inc., supra. The date of accrual was May 3, 1989, and the circuit court correctly applied the three-year period.

Affirmed.


text:
    STATE of Arkansas, ex rel. Winston Bryant, Attorney General v. Cortland C. McLEOD, d/b/a Medco Management Company and d/b/a Cardiovascular Testing and Lifestyle Center, and d/b/a Lifestyle and Vascular Center of Pine Bluff; Norman R. Pledger, d/b/a Cardiovascular Testing and Lifestyle Center; Francis Henderson, d/b/a F.L.O. Partnership of Pine Bluff; Oscar Demaine, Jr., d/b/a F.L.O. Partnership and d/b/a Lifestyle and Vascular Center of Pine Bluff; Leonard Dunn, d/b/a F.L.O. Partnership and d/b/a Lifestyle and Vascular Center of Pine Bluff; and Neil E. Gregory, d/b/a Medco Management Company and d/b/a Lifestyle and Vascular Center of Pine Bluff, Jointly and Severally
    94-394
    888 S.W.2d 639
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994

      Winston Bryant, Att’y Gen., by; James DePriest, Asst. Att’y Gen., for appellant.

      C. Scott Clark and Charles R. Curbo, for appellees.
   Jack Holt, Jr., Chief Justice.

The State of Arkansas, by and through the office of the Attorney General, successfully prosecuted a claim against the appellees, Cortland C. McLeod, and Neil E. Gregory, for committing violations of the Arkansas Deceptive Trade Practices Act (“DTPA”), codified in Ark. Code Ann. § 4-88-101 et seq.; however, the trial court denied its request for attorneys’ fees and for reimbursement of an expert-witness fee. The State appeals, and finding no merit in its arguments, we affirm the chancellor.

On March 11, 1992, the Attorney General brought an action against several defendants, including McLeod and Gregory, claiming fraud, deception, or false pretense, as well as a violation of the Arkansas Deceptive Trade Practices Act (“DTPA”), codified in Ark. Code Ann. § 4-88-101 et seq. The complaint alleged in part that the parties had engaged in the business of providing medical diagnostic tests and lifestyle intervention services to Arkansas consumers, advertised these services through print media and telemarketing, and, through such advertising, violated the DTPA by offering consumers free tests, including cholesterol readings and blood pressure checks, while asserting that the results of such tests would indicate the future likelihood of strokes, heart attacks, and hardening of the arteries. The case was settled as to all the defendants except separate defendants McLeod and Gregory. After trial, the chancellor, in a detailed finding of fact, found that McLeod had personally instituted and supervised some of the practices which were the subject of the lawsuit, and that he was the moving force behind the creation of each of the clinics, serving as its business manager in charge of billing practices. The chancellor found that Gregory had personal knowledge of acquiescence and committed many of the acts found to be deceptive and fraudulent. As a result, she issued an injunction against McLeod and Gregory, prohibiting them from engaging in any deceptive or unlawful practice prohibited by the DTPA, and rendered judgments against them jointly and severally in the amount of $163,817.80 as restitution for the benefit of affected insurance plans and carriers. The State, in turn, filed a motion requesting $53,605.00 in attorneys’ fees and $8,134.00 in costs, as well as $2,500.00 for reimbursement for monies spent on an expert witness. The chancellor, in a well-reasoned and detailed order, found that neither attorneys’ fees, nor payment of an expert-witness fee were authorized by statute, and denied the state’s claim except for costs. The order reads in pertinent part that:

2. The award of attorneys’ fees in a Deceptive Trade Practices Act is governed by Ark. Code Ann. Section 4-88-113(b). Section 4-11-113(b) was amended by the Arkansas General Assembly in its 1993 legislative session. Prior to being amended, Ark. Code Ann. Section 4-88-113(b) stated:
(b)(1) Upon petition of the Attorney General, the court may order the suspension or forfeiture of franchise, corporate charter, or other licenses or permits or authorization to do business in this state.
(2) As compensation for his services in this behalf, the Attorney General shall be entitled to his expenses incurred in the investigation and prosecution of suits, to be paid by the defendant when judgment is rendered for the state, to be taxed as costs by the court hearing the cause, [emphasis added].

As amended Ark. Code Ann. Section 4-88-113(b) states:

(b)(1) Upon petition of the Attorney General, the court may order the suspension or forfeiture of franchises, corporate charters, or other licenses or permits or authorization to do business in this state.
(2) As compensation for his services in this behalf, the Attorney General shall be entitled to his expenses incurred in the investigation and prosecution of suits, to be paid by the defendant when judgment is rendered for the state, to be taxed as attorneys’ fees and costs by the court hearing the cause, [emphasis added].
3. There is no statutory authority under the prior Ark. Code Section 4-88-113(b) for the award of attorneys’ fees, only for the award of “expenses incurred in the investigation and prosecution of suits.” Therefore, under the prior version of Ark. Code Ann. Section 4-88-113(b), the Plaintiff is not entitled to the award of attorneys’ fees.
4. As amended, Ark. Code Ann. Section 4-88-113(b) does authorize the awarding of attorneys’ fees. However, under both prior law and the law as amended, the awarding of attorneys’ fees and expenses is limited to those cases where the Attorney General seeks the “suspension or forfeiture of franchises, corporate charters, or other licenses or permits or authorization to do business in this state.” The Plaintiff did not seek such remedies in this case and, therefore, the Plaintiff’s request for attorneys’ fees and expenses should be, and is hereby, denied.
5. In the absence of a statute authorizing the Court to award fees for an expert witness, the fees of an expert witness cannot be charged against the losing party. Sutton v. Ryder Truck Rental, Inc., 305 Ark. 231, 807 S.W.2d 905 (1991). There is no statute authorizing the Court to award expert witness fees to the Plaintiff and, therefore, the Plaintiff’s request for expert witness fees should be, and is hereby, denied.
6. The Court has discretion to award the winning party its costs incurred in the prosecution of a case. Lewallen v. Bethune, Adm’x, 267 Ark. 976, 593 S.W.2d 64 (1980). The Court finds that the Plaintiff has incurred costs in connection with this lawsuit in the total amount of $3,046.87. The Court hereby directs the Defendants, Cortland C. McLeod and Neil E. Gregory, jointly and severally, to pay into the Registry of the Court the amount of $3,046.87 no later than 20 days from the date of this Order, said amount to be applied to the costs incurred by the Plaintiff in this lawsuit.

The State takes issue claiming that it was the intent of the legislature that the State should be allowed to recover attorneys’ fees and out-of-pocket costs, including witness fees from successful litigation of this nature, and specifically invites us to examine the DTPA from its creation in Act 92 of 1971, which includes the following provision for remedies in Section 11:

Upon petition of the Attorney General, the Court may order the suspension or forfeiture of franchise, corporate charter, or other licenses or permits or authorization to do business in this State, and may assess costs to be recovered by the Attorney General for the use of the State, from any person who willfully violates the provisions of this Act.

(Emphasis added.) It interprets this provision as providing for a discretionary award of costs to the Attorney General against any person who willfully violates the provisions of the DTPA, and notes that this section was left unchanged when the DTPA was amended by Act 835 of 1977. The State also observes that several changes in the DTPA were affected by Act 1177 of 1991, at which time the remedies section was codified in Ark. Code Ann. § 4-88-113, to which the chancellor specifically referred in her order, and in particular, the phrase “from any person who willfully violates the provisions of this Act” in the former version was replaced by the language in subsection (b)(2) to “when judgment is rendered for the state.” The State maintains that through this change, the legislature removed the requirement that it prove an intentional violation of the DTPA in order to be compensated for its expenses, and further contends that this change illustrates a trend to expand the concept of costs to include expenses incurred in investigation and prosecution. It claims that the term “services” in subsection (b)(2) refers to the services of an attorney or attorneys’ fees, and suggests that no other construction would make sense. In short, the State maintains that the chancellor’s interpretation runs contrary to the purpose of consumer protection litigation in protecting the public, and asserts that the relief providing for the suspension or forfeiture of a franchise or charter may not be applicable in every DTPA case and that the 1991 version of the act provides sufficient express authority and direction for the award of attorneys’ fees. Alternatively, the State contends the chancellor erred in unduly restricting the 1993 version providing for the award of attorneys’ fees to those cases involving the suspension of corporate charters, licenses, and the like.

In support of its position, the State correctly asserts that the basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Pugh v. St. Paul Fire & Marine Ins. Co., 317 Ark. 304, 877 S.W.2d 577 (1994). Yet, the State fails to note when a statute is clear, it is given its plain meaning, and that we will not search for legislative intent, rather, that intent must be gathered from the plain meaning of the language used. Pugh, supra. We are also very hesitant to interpret a legislative act in a manner contrary to its express language unless it is clear that a drafting error or omission has circumvented legislative intent. Neely v. State, 317 Ark. 312, 877 S.W.2d 589 (1994). In interpreting a statute and attempting to construe legislative intent, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate means that throw light on the subject. McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994). We have recognized that changes made by subsequent amendments may be helpful in determining legislative intent. American Casualty Co. v. Mason, 312 Ark. 166, 848 S.W.2d 392 (1993). Mindful of these legal principles, we believe the State’s arguments fall short of the mark, for, as the chancellor found, none of the DTPA enactments authorize the awarding of attorneys’ fees under the facts before us.

In agreeing with the chancellor, we adhere to our general rule that the recovery of attorneys’ fees is not allowed except when expressly provided for by statute. Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). The terms “costs” or “expenses” when used in a statute do not ordinarily include attorneys’ fees. Barnett v. Arkansas Transp. Co., 303 Ark. 491, 798 S.W.2d 79 (1990); Damron v. University Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988). Like the chancellor, we cannot ignore the plain language of Ark. Code Ann. § 4-88-113 (b)(2), which only provides for the award attorneys’ fees in those cases where the attorney general seeks the “suspension or forfeiture of franchises, corporate charters, or other licenses or permits, or authorizations to do business in the state.”

The chancellor was also correct in denying the State’s request for reimbursement for the costs of its expert witness, Dr. Jon Lindemann, specifically basing her decision on our holding in Sutton v. Ryder Truck Rental, Inc., 305 Ark. 231, 807 S.W.2d 905 (1991), in which we declared that in the absence of statutory authorization, the fees of expert witnesses cannot be charged against the losing party. Here, there is no statutory authority in the DTPA which provides that expert-witness fees can be charged against the losing party.

Lastly, the State directs our attention to case law in other jurisdictions in support of its position that where there have been violations by deceptive practices, fraud, or the like, the prevailing party should be awarded attorneys’ fees as well as fees for experts and related costs. These cases simply have no bearing on the Arkansas Deceptive Trade Practices Act and its interpretation.

As stated previously, the chancellor’s findings were correct in all their particulars, and we so hold.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    SILVEY COMPANIES v. Frenchie RILEY
    94-484
    888 S.W.2d 636
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994
    [Rehearing denied January 17, 1995.]

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Rick Runnels and Valerie Denton, for appellant.

      Gibson & Hashem, by: C.C. Gibson, III, for appellee.
   Robert H. Dudley, Justice.

Frenchie and Hazel Riley’s home was destroyed by fire on June 9, 1992. The Silvey Companies had issued a homeowners’ policy to Frenchie Riley that covered loss by fire in the amounts of $45,000.00 for the dwelling and $22,500.00 for the contents and personal property. On July 8, 1992, Silvey paid $500.00 on the contents. The Rileys employed counsel, and there were various discussions with Silvey’s attorney. On October 13, 1992, the claim had not been paid in full, and Frenchie Riley filed suit against the Silvey Companies. The prayer of the complaint asked for the policy limits, twelve percent penalty and attorneys’ fees. See Ark. Code Ann. § 23-79-208(a) (Repl. 1992). Silvey answered that the policy was void because the Rileys had intentionally set their home on fire.

On October 28, 1992, Silvey paid Riley $40,000.00 on the dwelling. Riley’s attorney notified the company that it owed another $5,000.00 on the dwelling plus the policy limits on the contents. On November 25, 1992, Silvey paid $15,000.00 for “fire.”

On December 8, 1992, Riley amended his complaint to allege that Silvey had paid $55,000.00, but still owed $12,500.00 for the contents and personal property, and asked for penalty and attorneys’ fees. Silvey answered and denied that it owed any more money under the policy. On December 15, 1992, Silvey paid Riley the final $12,500.00.

On February 5, 1993, Silvey filed a motion alleging that it had settled the case with Riley. It asked the trial court to enforce the settlement and not to award a penalty and attorneys’ fees. Riley responded by denying that a settlement had been reached.

On October 6, 1993, the trial court found that the case had not been settled, fixed the penalty at $8,100.00, and awarded attorney’s fees of $20,000.00. Silvey appeals. We affirm.

Riley argued below, and argues in this court, that the policy’s terms provided that Silvey was required to pay the amount owed sixty days after it received the proof of loss. Silvey did not contest that construction of the terms of the policy in the trial court and in its brief in this court admits: “The policy in this case provided that Silvey would pay for the loss 60 days after Proof of Loss was received.” The trial court found that Riley was not paid until more than sixty days after the proof of loss was submitted. There was substantial evidence to support that finding.

Section 23-79-208 of the Arkansas Code Annotated provides in pertinent part:

In all cases where loss occurs and the . . . fire . . . insurance company . .. liable thereon shall fail to pay the losses within the time specified in the policy, after demand made therefor, the [insurance company] shall be liable to pay the holder of the policy . . ., in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorneys’ fees for the prosecution and collection of the loss.

Ark. Code Ann. § 23-79-208(a) (Repl. 1992).

Our construction of this section is straightforward: “Where an insured loss occurs and an insurance company fails to pay the loss within the time specified in the policy, then the insurance company is required to pay, in addition to the loss, a 12% penalty plus reasonable attorneys’ fees.” Miller’s Mut. Ins. Co. v. Smith Co., 284 Ark. 124, 126, 680 S.W.2d 102, 103 (1984). The fact that the insurance company later paid the claim does not defeat the award of penalty and attorney’s fees for “[i]t is well settled that attorney’s fees and penalty attach if the insured is required to file suit, even though judgment is confessed before trial.” Federal Life & Casualty Co. v. Weyer, 239 Ark. 663, 666, 391 S.W.2d 22, 23 (1965).

Silvey argues that there is an exception to the above stated general rule and that this exception applies where it is reasonably necessary for the insurance company to continue to investigate the loss even after payment is due under terms of the policy. See Clark v. New York Life Ins. Co., 245 Ark. 763, 434 S.W.2d 611 (1968). The argument does not prevail in this case because it was not reasonably necessary for the insurance company to continue to investigate the case for more than sixty days after the proof of loss was submitted. Here, the insurance company was notified of the fire the day after it occurred and assigned an adjusting firm to investigate the loss. By June 22, 1992, it had concluded the fire was of incendiary origin, and within thirty days after the fire Silvey had set up its arson defense. Silvey took sworn statements from both of the Rileys, and, within sixty days of the fire, it was in position to either admit or deny the claim. Silvey did not show a reasonable need for investigation past the sixty day period.

Silvey additionally argues that it did not have a revised inventory of contents until November 30, 1992, and it is excused from paying until at least that time. However, this was a disputed matter of fact, and the trial court ruled against Silvey. It is axiomatic that decisions as to the credibility of the witnesses are to be made by the trier of fact. Atkins v. State, 310 Ark. 295, 836 S.W.2d 367 (1992).

In its reply brief in this court Silvey argues that the “time to impose a penalty and attorneys’ fees is not 61 days after the loss as ordered by the trial court, but after the proof of loss was received and one of the various other requirements enumerated [in the policy] has been met.” We do not reach this argument because it is made for the first time on appeal, and we will not reverse for error not brought to the attention of the trial judge. Schmidt v. McIlroy Bank & Trust, 306 Ark. 28, 811 S.W.2d 281 (1991).

Silvey next argues that the trial court miscalculated the amount of penalty and attorneys’ fees. It argues that the trial court should have fixed the penalty and allowed attorneys’ fees only on $12,500.00, the amount of the last demand by Riley. We do not reach the argument because it was not raised in the trial court. Riley, in his brief to the trial court, wrote:

The only issue is did they fail to pay the loss within the time specified in the policy. If so, the statute mandates that the Court assess the 12% penalty and attorney’s fees. As to the penalty amount, it was undisputed at the hearing the 12% penalty is $8,100.00 on the loss of $67,500.00.
The attorney’s fee paid by Mr. and Mrs. Riley was $22,500.00 based upon a one-third contingency fee contract with their attorneys and a total recovery of $67,500.00. (emphasis added).

Silvey did not contest the suggested method of calculation. Rather, it argued that it did not owe any penalty and attorneys’ fees. Silvey never presented an argument to the trial court that the penalty and attorneys’ fees should be based only upon the amount of the final demand, and we will not decide an argument raised for the first time on appeal.

Affirmed.


text:
    Kathy WILLIAMS, d/b/a the Corner Fast Food Restaurant v. MOZARK FIRE EXTINGUISHER COMPANY
    94-483
    888 S.W. 2d 303
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994

      Roy & Lambert, by: Jon P. Robinson and Brian D. Wood, for appellant.

      Bassett Law Firm, by: Curtis L. Nebben, for appellee.
   Robert H. Dudley, Justice.

In December 1987, Kathy Williams employed the Mozark Fire Extinguisher Company to install a fire extinguishing system in her restaurant. The system was designed to automatically activate in case of a fire in the area under a cooking hood. Upon activation the system was to blanket the area with sodium bicarbonate so that a fire would be smothered. The system was also designed to accommodate an electrical power shut-off device for cooking appliances. However, Mozark offered testimony that it was not involved with the installation of the electrical shut-off system, but instead that work was to be done by an independent electrician. There was no showing by Williams that any electrician hired to connect the system had any association with Mozark.

On May 13, 1988, five months after the system was installed, a repairman employed by Williams apparently removed the high temperature limit thermostat from one of the deep fat fryers. A cook later filled the fryer with cooking oil and plugged it into an electrical outlet. The cook noticed that it was smoking more than normal, unplugged it, and called the restaurant manager. The manager came to the restaurant, again plugged it in, and left the restaurant to find the repairman. The oil in the fryer caught fire. A waitress and a customer testified that the fire extinguishing system activated. The waitress testified that the chemical controlled the fire momentarily, but, after it stopped spraying, the fire reignited.

Mozark offered testimony to show that after the system releases the sodium bicarbonate over the appliance area, the fire is smothered because of lack of oxygen, but, if an appliance is overheated by electricity and the electricity remains on and continues to overheat the appliance, the oxygen seal will be lost and the hot appliance will reignite the fire. There was additional testimony that the power shut-off system did not activate.

Williams sued Mozark in tort for negligent design and installation of the system. Mozark answered that Williams was guilty of contributory negligence. On July .16, 1993, Williams amended her complaint to allege breach of implied warranty of fitness for a particular purpose. This breach of contract amendment was made more than five years after the fire, and there was no allegation that Williams had given Mozark prior notice of the alleged breach. After Williams presented her case-in-chief, the trial court directed a verdict for Mozark on the contract count because there was no proof of notice as required by the Uniform Commercial Code. The trial court submitted the tort count to the jury, and it found Williams to be one hundred percent at fault and Mozark to be without fault. Williams appeals both counts. We affirm.

Mozark had the burden of proving Williams’s contributory negligence. Young v. Johnson, 311 Ark. 551, 845 S.W.2d 510 (1993). Williams argues that the trial court erred in refusing to direct a verdict in her favor on Mozark’s affirmative defense of contributory negligence. It is well settled that:

The test for the trial court in ruling on a motion for a directed verdict by either party is to take that view of the evidence that is most favorable to the non-moving party and give it its highest probative value, taking into account all reasonable inferences deducible from it; after viewing the evidence in this manner, the trial court should: (1) grant the motion only if the evidence is so insubstantial as to require that a jury verdict for the non-moving party be set aside, or (2) deny the motion if there is substantial evidence to support a jury verdict for the non-moving party. Farm Bur. Mut. Ins. Co. v. Henley, 275 Ark. 122, 628 S.W.2d 301 (1982). Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture. Id.

Young, 311 Ark. at 556, 845 S.W.2d at 513 (quoting Kinco, Inc. v. Schueck Steel, Inc., 283 Ark. 72, 671 S.W.2d 178 (1984)).

Here, there was substantial evidence to support a finding of negligence on the part of Williams. There was evidence that Williams’s employees knew the fryer was not working properly, yet again plugged it in and left it to catch fire. There was evidence that Williams failed to hire an electrician to properly connect the automatic power shut-off system and that, in turn, the failure of the shut-off system was the cause of the. fire reigniting. Even so, Williams argues that the foregoing is irrelevant because the proximate cause of her loss was that the system failed to extinguish the fire, regardless of how negligent she might have been in causing the fire. The argument is without merit.

While it is accurate to state that a plaintiff’s own negligence is not always a proximate cause of his damages, see Kubik v. Igleheart, 280 Ark. 310, 657 S.W.2d 545 (1983), such is not the case now before us. Here, Williams’s negligence was a contributing proximate cause of her own damages. Proximate cause is that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. Id. The fire and resulting damages would not have occurred without the negligence of Williams and her employees. Our comparative statute provides: “The word ‘fault’ as used in this section includes any act, omission, conduct, risk assumed, breach of warranty, or breach of any legal duty which is a proximate cause of any damages sustained by any party.” Ark. Code Ann. § 16-64-122(c) (Supp. 1993). Thus, Williams’s conduct is to be viewed as to whether it was a proximate cause of her damages.

Williams correctly states that under the comparative fault statute there must be a determination of proximate cause before any fault can be assessed against a claiming party. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993). However, proximate cause is generally a question for the jury. Id. Only if reasonable minds could not differ does it become a question of law. Id. Here, the evidence regarding proximate cause was sufficient to go to the jury.

Williams next argues that the trial judge erred in directing a verdict in favor of Mozark on her count for breach of implied warranty of fitness for a particular purpose. Williams first indicated a reliance on this theory of recovery in her second amended complaint, filed July 16, 1993, more than five years after the fire. At trial, after Williams’s case-in-chief, appellee moved for a directed verdict on the basis of lack of notice of this theory of recovery. The trial judge granted the motion.

The Uniform Commercial Code provides that a “buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.” Ark. Code Ann. § 4-2-607(3)(a) (Repl. 1991). We have held that the giving of reasonable notice is a condition precedent to recovery under the provisions of the commercial code and that the giving of notice must be alleged in the complaint in order to state a cause of action. L.A. Green Seed Co. v. Williams, 246 Ark. 463, 438 S.W.2d 717 (1969). In L.A. Green Seed Co., we affirmed a directed verdict in favor of the defendant because the giving of notice was not alleged in the complaint. We have additionally stated that the notice must be more than a complaint. Cotner v. International Harvester Co., 260 Ark. 885, 545 S.W.2d 627 (1977). Thus, under the statute, Williams failed to give proper notice by the filing of her second amended complaint.

Williams contends that the purpose behind the notice requirement is not present in this case because the product was destroyed, and, therefore, we should not follow the literal wording of the statute. The purpose of the statutory notice requirement of a breach is twofold. First, it is to give the seller an opportunity to minimize damages in some way, such as by correcting the defect. Second, it is to give immunity to a seller against stale claims. L.A. Green Seed Co., 246 Ark. at 468, 438 S.W.2d at 720. While it is true that the system was destroyed and the seller can no longer minimize damages, the other statutory purpose is present. Thus, we decline to ignore the statutory requirement.

We treat Williams’s next two assignments of error together. In these points she contends that the trial judge erred in submitting interrogatories to the jury. The interrogatories complained of are numbers 1 and 3. They read as follows:

Interrogatory No. I: Do you find from a preponderance of the evidence that there was negligence upon the part of Kathy Williams, d/b/a The Comer Fast Foods, which was a proximate cause of any damages?
Interrogatory No. 3: Using 100% to represent the total fault for the occurrence and any damages resulting from it, apportion the responsibility between the parties.

The jury answered “yes” to the first interrogatory and apportioned one hundred percent of the fault to Williams and zero percent to Mozark in response to number three.

Williams contends that the trial court erred in submitting the case to the jury on interrogatories instead of on a general verdict, but this is a matter that is within the discretion of the trial court. Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984). Williams offers no convincing argument as to how the trial judge abused his discretion in the matter. She does not contend that the instructions do not correctly state the law. Rather, she contends that the jury was confused by the instructions and that confusion caused the jury to render a defendant’s verdict. She contends that the interrogatory about her contributory negligence caused the confusion. Interrogatory No. 2 asked the jury if they determined that any negligence that was the proximate cause of damages on the part of Mozark had been proved. Their response was “no.” Thus, regardless of what the jury determined about Williams’s conduct under interrogatories 1 and 3, the response to No. 2 indicates that the verdict would have been the same even if the case had been submitted on a general verdict.

Williams also argues that it was error to submit the interrogatories because there was no proof of her negligence. We have already discussed this issue and have held the trial court correctly refused to grant Williams’s motion for a directed verdict. It logically follows that the trial court was correct in instructing the jury on the issue of her negligence.

Affirmed.


author: Steele Hays, Justice.

text:
    Stanley Frank BOYD v. STATE of Arkansas
    CR 94-321
    889 S.W.2d 20
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994

      Robert T. Rogers, II, Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Stanley Frank Boyd appeals from his conviction and forty year sentence for the rape of an eight-year-old girl. Three points of error are argued: a motion to suppress his statement to the police should have been sustained, a juror should have been excused for cause, and a mistrial should have been ordered because of the prosecutor’s closing argument. Finding no error, we affirm the judgment of conviction.

Motion To Suppress

Lt. J. R. Ashlock of the Carroll County Sheriff’s Office testified concerning a complaint for sexual molestation. He interviewed the alleged victim and several members of her family. A sister of the victim testified that she, the victim and their brother had spent the previous night in the tent of Boyd, a family friend. The sister said she awoke and saw Boyd kissing her sister, fondling her breasts and “running his finger in and out of her.”

The victim’s mother told Lt. Ashlock that her daughter had complained of pain on urination and, on questioning, said Boyd had taken off her clothes and put his finger inside of her.

Lt. Ashlock contacted Boyd and asked if he would come to the sheriff’s office to discuss the charges. When Boyd refused, he was arrested and taken to the interview room at the sheriff’s office. Boyd was given the Miranda warnings and the interview was recorded on tape. The tape was transcribed and Lt. Ashlock referred to it during his testimony. The tape was played twice because parts were barely audible, but the following dialogue emerged:

Boyd: Okay, let me ask you this because I’ve done nothing wrong.
Ashlock: Okay, that’s what I’m here to find out.
Boyd: And the situation that I’m in because I don’t know how you are going to react to what I say, what would be my best option, to talk to you or to get a lawyer.
Ashlock: Let me put it this way —
Boyd: I am just asking your opinion.
Ashlock: See, I can’t tell you what to do, you have to make your own decision. Now, what I can tell you is that I will listen to what you have to say and I will take that into consideration. I’m going to — what I’m going to do if you want to talk to me is I’m going to ask you some standard questions.
Boyd: Um-hum
Ashlock: And give you a chance to tell your side of the story, okay?
Boyd: Um-hum.
Ashlock: And at anytime if you want to stop talking to me you just tell me, I don’t want to talk to you no more and I’ll — we’ll stop right there.
Boyd: Do you understand my position? I feel like I am in such a jam because I have never been in prison or anything, and I have never done anything wrong.
Ashlock: Okay.
Boyd: I’m just saying I don’t understand which way to go here.
Ashlock: Well, I see, like you say, I can’t tell you that. If I do, they say I’m pressuring you or I am promising you.
Boyd: You’re not pressuring me or promising me nothing, I’m just—
Ashlock: Okay.
Boyd: I’m asking you — let me ask you if, if you were setting in my position what would you do?
Ashlock: If I didn’t do anything, I would talk to you.
Boyd: You bet I’ll talk to you.

(Appellant’s Abstract.)

Boyd argues the quoted dialogue is consistent with an equivocal request for counsel and reminds us of the following language in Day v. State, 306 Ark. 520, 816 S.W.2d 852 (1991):

[W]here a suspect makes an equivocal assertion of counsel, the police must cease all questioning, except that they may attempt to clarify the suspect’s desire for counsel.

But in the later case of Davis v. United States, 512 U.S. __, 114 S.Ct. 2350 (1994), the Supreme Court took a different path, holding that an equivocal request for counsel does not obligate the police to cease questioning and seek clarification. Interrogation may continue until the suspect clearly requests counsel. We applied that holding in Higgins v. State, 317 Ark. 555, 879 S.W.2d 424 (1994). Much like this case, Higgins asked the interrogating officer, “Do you think I need an attorney?” We wrote:

Thus we now have it on clear authority that an ambiguous reference to an attorney by a suspect after hearing his Miranda rights read, does not require that the interrogation cease. Mr. Higgins’ reference to an attorney in this case was surely ambiguous and hardly amounted to the sort of direct request required to invoke his Fifth Amendment right to counsel. While we cannot say for certain how the Supreme Court would decide the case now before us, the language of the opinion in the Davis case leads us to suspect it would affirm on this point, thus, we do so. [Our emphasis.]

We hold that the trial court correctly applied the Higgins rationale in this case.

Excusal For Cause

Boyd submits one of the venire, Arthur Barker, should have been excused for cause. During voir dire, Mr. Barker informed the court that some two years earlier his daughter had been subjected to an attempted sexual assault. She was in her car with her two children in a parking lot when a man got in the car and attempted to put his head up between her legs. By screaming and honking the horn she managed to chase him away. He said the man was later apprehended and institutionalized.

Mr. Barker was questioned at some length about the incident. He regarded it as unfortunate and while his daughter was upset at the time, she had gotten over it completely and what happened to her had no bearing on the charge in this case. The gist of his comments was that he could decide the case on the evidence and would not hesitate to return a verdict of not guilty if there were any reasonable doubt of the defendant’s guilt. Boyd’s motion to strike juror Barker for cause was denied.

When actual bias is in question, as opposed to bias implied by law, the qualification of the juror is within the sound discretion of the trial judge because he or she is in a better position to weigh the demeanor of the prospective juror’s response to the questions on voir dire. Linnell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984). Here, the overall voir dire of Barker does not suggest equivocation. His responses were satisfactory to the trial judge and we can observe no distortion of the trial court’s discretion. Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993).

Motion For Mistrial

In closing argument, the prosecutor said:

I have no recommendation to you about what to do with this man if you find him guilty, but I wish you would consider some of the questions in voir dire. Mr. Barker back there, his response about his incident that Mr. Rogers [defense counsel] asked him about. . .

Counsel objected and the trial judge promptly sustained the objection and told the prosecutor to move on. Counsel then moved for a mistrial and the trial judge said, “That will be denied. Mr. Elser [prosecutor] you need to keep your remarks to the proof that’s before the court.” On that note the prosecutor concluded his argument and the jury retired.

We begin by noting that whatever the prosecutor may have been on the verge of saying remained unsaid. Counsel’s prompt objection, quickly sustained by the trial judge, averted more than an oblique reference to the voir dire of juror Barker. It may be that counsel’s objection prevented reversible error, but it would be sheer conjecture on our part to speculate as to what might have been. The bottom line on mistrials is that the incident must be so prejudicial that the trial cannot, in fairness, continue. Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). It would be difficult in the extreme to conclude that the trial court had abused its discretion by refusing to abort a trial for remarks that were never uttered unless it gave rise to an inference so clearly prejudicial and improper as to obviate the need for expression.

Our analysis might end here, but for the state’s assertion that this point is not preserved for appeal because counsel, before moving for a mistrial, objected to the remarks and the objection was sustained. The state relies on our decision in Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992) and King v. State, 312 Ark. 89, 847 S.W.2d 37 (1993). In Sullinger counsel moved for a mistrial based on questions posed to a defense witness by the prosecutor. The trial judge instructed the prosecutor to refrain from future questioning on the disputed point and asked counsel if he wanted the jury admonished. He said yes, adding that he wanted a mistrial. The trial judge gave a strong admonition and counsel again asked for a mistrial which was denied. On appeal we pointed out the inconsistency of requesting an admonition and a mistrial, commenting that counsel “could not have it both ways.”

Similar developments arose in King v. State, supra. Counsel, in the following order, objected to a witness’s response to a question posed by the prosecutor, moved to strike and moved for a mistrial on the grounds that the answer violated an order in limine. The trial judge denied the mistrial motion and asked if counsel wanted an admonition. He answered, “Yes. At the very least note my objection ” The prosecutor offered to take the witness aside and remind him not to mention the matters proscribed by the order in limine. Counsel demurred — “No. I simply asked that the objection at least be sustained. I do move for a mistrial.” The trial court then sustained the objection, denied the mistrial and admonished the jury. Bolstered in part by the trial court’s forceful admonition to the jury, we affirmed in these terms:

In the case before us, defense counsel was somewhat ambivalent about the relief he wanted. On the one hand, he requested a mistrial. But on the other, he wanted his objection sustained and was agreeable to an admonition to the jury “at the very least.” We have stated that a mistrial motion asserts that the error is beyond repair and cannot be corrected by any curative relief, while an objection to evidence does not carry with it the same gravity. Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992). A curative instruction is an acknowledged means of curing error. Id. Defense counsel got part of the relief he requested.

In sum, we have noted that an objection and a motion for mistrial serve wholly different purposes, the latter being appropriate to more serious episodes. But we have not held that the denial of a motion for mistrial is waived merely because it is preceded by an objection. Quite recently in Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994), counsel objected to a question which he perceived to violate an order in limine, and then, his objection sustained, requested a mistrial. That was denied with an offer to give a cautionary instruction. Counsel disregarded the offer and no cautionary instruction was given. On appeal, without addressing either the initial objection or the proffered admonition, we saw no abuse of discretion because the triggering event was not sufficiently harmful. Had there been any doubt, the failure of the defense to request an admonition would have negated the mistrial motion. Aaron v. State, 312 Ark. 19, 846 S.W.2d 655 (1993). It is also true that the failure to give an admonition or cautionary instruction is not error where none is requested. Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993); Perry v. State, 255 Ark. 378, 500 S.W.2d 387 (1973).

Nor do we think when a mistrial motion is denied and the trial court offers to admonish the jury, counsel waives the mistrial motion by agreeing to an admonition. Where, however, counsel moves for a mistrial and in the same breath asks for an admonition, we believe it operates as a request for alternative relief because of the obvious inconsistency. Sullinger v. State, 310 Ark. 690, 840 S.W.2nd 797 (1992). In short, we think that in reviewing a mistrial motion, we must look at all the developing circumstances which surround the incident to determine whether a manifest abuse of discretion occurred. Whether an admonition was requested and given, or requested and refused, are relevant factors, though not necessarily definitive in reaching that conclusion.

Affirmed.


text:
    Wanda COSTNER v. STATE of Arkansas
    CR 94-8
    887 S.W.2d 533
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994
    [Rehearing denied January 9, 1995.]

      Burhaus Law Offices, by: John T. Burhaus and William Howard, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Wanda Costner was charged with possession of approximately forty-five pounds of marijuana with intent to deliver. The marijuana was seized during the execution of a search warrant at the Costner home near Paragould. Mrs. Costner’s motion to suppress the evidence so obtained was denied by the trial court. She then entered a conditional plea of guilty with the consent of the prosecutor which the trial court accepted pursuant to Ark. R. Crim. P. 24.3(b). On appeal, Mrs. Costner contends the warrant violated the Fourth Amendment in that it failed to particularly describe the place to be searched and violated Ark. Code Ann. § 16-82-201(a) (1987) in that it lacked an affidavit sworn to before a judicial officer. She argues two additional points which we do not address because they are not within the ambit of Rule 24.3(b) We agree with the ruling of the trial court.

The Place To Be Searched

The search warrant described the premises as:

Residence on County Road 824, approximately 2 miles from County Road 853; residence is partial brick, located on left side of the road located in Paragould, County of Greene, State of Arkansas. . . .

Appellant maintains that the general description of a house “somewhere on County Road 824” is far too vague to satisfy constitutional requirements. The warrant, she argues, does not give a point of reference on County Road 824 from County Road 853, and “the left side of the road” could vary depending on the direction of one’s approach. However, a map of the area clearly shows that the juncture of Roads 824 and 853 forms an inverted “T” and, thus, access to 824 from 853 can occur only by proceeding north, which places the property “on the left side of the road,” as described in the warrant.

In this case, any number of attendant circumstances ruled out the likelihood of error. The warrant was issued on the strength of sworn statements to the magistrate by Wayne Cantrell and Lt. J.D. Stephenson of the Paragould Police Department. Cantrell was a parolee for a drug violation. When the police discovered marijuana at his home pursuant to a search warrant, he agreed to cooperate and told them he was obtaining marijuana from a couple known to him only as Randy and Wanda. He led Officer Stephenson to a dwelling on County Road 824 approximately two miles north of County Road 853 near Paragould. The officer returned to Paragould and immediately took the necessary steps to secure the warrant which was issued on the sworn and recorded testimony of Cantrell and Lt. Stephenson.

Appellant cites a number of cases dealing with the adequacy of description of places searched under a warrant. The test is whether it enables the executing officer to locate and identify the premises with reasonable effort and whether there is any likelihood that another place might be mistakenly searched. Steele v. United States, 267 U.S. 429 (1925). The requirement is designed to protect against innocent persons being subjected to a search by enabling officers to locate the right property. Perez v. State, 249 Ark. 1111, 463 S.W.2d 394 (1971).

Here, there can be no real concern in the matter. Not only was the property described with sufficient accuracy that a third party could have identified it simply by following the directions, but the executing officer had first been led to the very house which was the object of the search and returned to it shortly thereafter with warrant in hand. Any likelihood of a misidentification was minimal. See Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987).

Search Warrant Not Accompanied By A Sworn Affidavit

Relying on Ark. Code Ann. § 16-82-201(1) (1987), appellant argues that the warrant in this case is fatally flawed because it was issued without a sworn affidavit. That provision of our code, dating from 1971, reads:

A Search Warrant may be issued by any judicial officer of this State, only upon Affidavit sworn to before a judicial officer which establishes the grounds for its issuance.

Appellant acknowledges that Ark. R. Crim. P. 13.1(b) authorizes the issuance of a search warrant supported by one or more affidavits “or recorded testimony under oath before a judicial officer. . . .” However, appellant sees this as an “irreconcilable conflict between a procedural rule and a substantive statute,” in which case the former must bow to the latter. We disagree with that analysis.

The historical underpinnings are these: prior to § 16-82-201 (a) search warrants were often issued on affidavits which were further supported or amplified by oral unrecorded testimony before the issuing magistrate. Walton v. State, 245 Ark. 84, 431 S.W.2d 462 (1968). The problem with that procedure was that the affiants could then come into court and recount after the fact the substance of their oral testimony to the magistrate. The legislature disallowed that procedure by the adoption of Act 123 of 1971, encoded in § 16-82-201 (a), by providing that warrants could issue “only” upon affidavit sworn to before a magistrate. Clearly the purpose was not to restrict the issuance of search warrants to affidavits, but to insure that the information presented to magistrates and upon which they relied, was sworn to and recorded to facilitate subsequent review. 2 W. LaFave, Search and Seizure § 4.3(b) (1978). That was explained and affirmed in Cockrell v. State, 256 Ark. 19, 505 S.W.2d 204 (1974), accompanied by a caveat to law enforcement officers and magistrates to heed the new requirements. Our cases have adhered to that procedure since Cockrell. See e.g., Jackson v. State, 291 Ark. 98, 722 S.W.2d 831 (1987).

In this case the record reflects that Messrs. Cantrell and Stephenson were placed under oath by the magistrate and their ensuing testimony was preserved by recording. Since we regard that procedure as compliant with the letter as well as the spirit of § 16-82-201 (a), we do not address whether our rule or the statute is paramount.

For the reasons stated the order is affirmed and the case is remanded to the trial court for further proceedings.

      An informant was unreliable and incriminating statements made by her during the search should not be admissible in a trial.


text:
    Tenkasi M. VISWANATHAN v. The MISSISSIPPI COUNTY COMMUNITY COLLEGE BOARD OF TRUSTEES
    94-446
    887 S.W.2d 531
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994
    [Rehearing denied January 17, 1995.]

      Appellant, pro se.

      Everett Edsel Harber, for appellee.
   Steele Hays, Justice.

Appellant Tenkasi M. Viswanathan appeals the denial of a motion requesting an extension of time in order to file a petition for judicial review pursuant to the Arkansas Administrative Procedure Act (APA). Ark. Code Ann. §§ 25-15-201 — 214 (Repl. 1992 and Supp. 1993). We hold the APA is not applicable to the discharge of an employee and affirm the circuit court’s denial of the motion.

Appellant Viswanathan was an instructor at Mississippi County Community College during the 1992-1993 school year. Appellee Mississippi County Community College Board of Trustees notified Mr. Viswanathan that he would not be offered a contract for the 1993-1994 school year. The letter of notification was dated October 20, 1993, and Mr. Viswanathan asserts he received the letter on October 28. On November 29 Mr. Viswanathan filed his motion for extension of time in order to file a petition for judicial review.

In an order filed December 6 the trial court denied the motion. Subsequently, Mr. Viswanathan filed a motion for reconsideration pursuant to ARCP Rule 59. The trial court held Mr. Viswanathan had thirty days to file his petition for judicial review pursuant to Ark. Code Ann. § 25-15-212(b)(1) (Repl. 1992). The trial court found the time began to run when the letter was mailed on October 20 and the Administrative Procedure Act does not provide an exception to the thirty day requirement. Consequently, the trial court denied the motion for reconsideration. Mr. Viswanathan appeals from the December 6 Order and the order denying reconsideration. He raises seventeen points on appeal.

Jurisdiction

Mr. Viswanathan sought an extension in order to file a petition for judicial review pursuant to the judicial review provision (Ark. Code Ann. § 25-15-212) of the Administrative Procedure Act. Section 25-15-212, Administrative adjudication — Judicial review, provides in part:

(a) In cases of adjudication, any person . . . who considers himself injured in his person, business, or property by final agency action shall be entitled to judicial review of the action under this subchapter.

However, in Ark. Livestock & Poultry Comm’n v. House, 276 Ark. 326, 634 S.W.2d 388 (1982), we held the discharge of an employee is not an adjudication but an administrative decision and the circuit court is without jurisdiction to review such actions. See also Stafford v. City of Hot Springs, 276 Ark. 466, 637 S.W.2d 553 (1982). In Ark. Livestock & Poultry Comm’n we wrote:

It seems too obvious for serious argument that the Administrative Procedure Act, enacted in 1967, was never designed nor intended to create supervisory responsibility by the judicial branch of state government over the day-to-day actions of the executive branch, including the hiring and firing of personnel, but, rather, to establish procedures for hearings and notice (which meet due process requirements) in those functions of the executive branch which are basically adjudicatory or quasi judicial, particularly with respect to rule making, the renewal or revocation of licenses, and where, under law, an agency of the State must make orders based on the adjudication process. But it is only in the judicial functions that the Administrative Procedure Act purports to subject agency decisions to appellate review and then only as narrowly prescribed in the act. See J. L. Williams & Son v. Smith, 205 Ark. 604, 170 S.W.2d 82 (1943). It hardly need be said that firing employees is clearly an administrative act and not a matter that involves the quasi judicial function of an agency.

Thus, assuming that the Administrative Procedure Act even applies to a decision made by the Board of Trustees, the discharge of an employee is an administrative decision.

Jurisdiction is a question the Court can address at any time. Skelton v. City of Atkins, 317 Ark. 28, 875 S.W.2d 504 (1994). In fact, it is not only the right but the duty of the Court to determine whether there is jurisdiction of the subject matter. Id. Accordingly, we find the circuit court was without subject matter jurisdiction, and we affirm the circuit court’s decision. We will sustain the trial court’s decision if it is right, even though we may do so on a different basis. McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994).

The appellant’s points on appeal concern the administrative adjudication process and the procedures for filing a petition for judicial review pursuant to the Administrative Procedure Act. Because the APA is not applicable to the discharge of an employee, we do not address the merits of the appellant’s points on appeal.

Affirmed.