author: AVENSKI R. SMITH, Justice. WH. “Dub” ARNOLD, Chiefjustice,

text:
    Darryl Robert FRANCIS, Sr. v. Darryl Robert FRANCIS, II; Linda Francis Northrip; and Marilyn Francis Obermiller
    00-41
    31 S.W.3d 841
    Supreme Court of Arkansas
    Opinion delivered December 7, 2000

      Richard F. Hatfield, for appellant.

      Smith, Maurras, Cohen, Redd & Horan, PLC, by: Matthew Horan, for appellees.
   AVENSKI R. SMITH, Justice.

Appellant Darryl Robert Francis, Sr. (“Francis”), appeals the Sebastian County Circuit Court’s dismissal of his civil conspiracy and tortious interference with contract complaint. Francis filed the action against his children, Appellees Darryl Robert Francis, II (“Robert”), Linda Francis Northrip, and Marilyn Francis Obermiller, for prosecuting a guardianship proceeding against him. The parties settled the guardianship action before completion of the trial on the merits. On appeal, Francis argues that the trial court erred in applying the doctrines of res judicata and judicial estoppel to bar his tort claims against his children, particularly his daughters. We disagree and affirm.

Facts

In 1996, Francis, a retired banking official in his early 80s, retained Sherrian Kirill as a paralegal to assist him with personal affairs. In January 1997, Francis’s wife of fifty years, Loretta, died due to Alzheimer’s disease. Over the course of the next year, Francis entered into a relationship with Krill. By March 1998, they had made plans to marry. On March 18, 1998, Krill negotiated and signed a real estate contract to buy a house priced at $342,000. The home would be paid for by Francis but titled in Krill’s name only. The closing date on Krill’s real estate contract was set for April 2, 1998. Concerned about his father’s mental state, Robert filed a guardianship petition in the Sebastian County Probate Court on March 20, 1998. The complaint alleged that his father was mentally incompetent and cited medical reports from Francis’s treating physician. The physician opined that Francis may be suffering from non-Alzheimer’s dementia. The probate court entered an ex parte order naming Robert as his father’s temporary guardian until a hearing could be held. Krill intervened on March 23, 1998, requesting to be appointed guardian if Francis were declared incompetent.

On April 1, 1998, the probate court set aside its ex parte order appointing Robert temporary guardian, but ordered that Francis be enjoined from contracting or transferring property to a third person pending the outcome of the guardianship proceeding. The probate court further ordered that Francis undergo a neurological evaluation and that Francis’s attorney conduct interviews for the hiring of a licensed practical nurse to assist Francis pending the final hearing. On April 2, 1998, Northrip and Obermiller petitioned to intervene in the proceedings arguing, too, that their father was incompetent due to the medical findings. They requested that either their brother be appointed guardian or, if Robert was not appointed, that a bank trustee be appointed. They also alleged that Krill asserted undue influence on their father by imposing herself on the person and property of Francis and by contracting to buy a home, for which she could not pay herself, with Francis’s money.

The probate court entered another order on April 17, 1998, again appointing Robert temporary guardian and setting a hearing on July 1, 1998, to determine permanent guardianship. Discovery progressed and on June 29, 1998, Francis sued Robert in Sebastian County Circuit Court for abuse of process for filing the guardianship proceeding, alleging that the grounds for filing the guardianship were not proper under Arkansas law. Instead, Francis alleged, the true motives for the filing were to prevent him from marrying Krill and to prevent Krill from having access to Francis’s property and finances. The guardianship hearing began on July 1, 1998, and completed a full day’s trial. Flowever, before proceeding to the second day, the parties agreed to a settlement with the following terms applicable to all parties to the action, including Francis, Robert, Northrip, Obermiller, and Krill:

a. The guardianship petitions filed by the children would be dismissed with prejudice;
b. The pending lawsuit filed by Francis against Robert would be dismissed with prejudice;
c. An irrevocable trust would be created for Francis’ benefit during his lifetime, with the Arvest Trust Company named as trustee. The setdement noted that Francis would transfer all of his assets into the trust, excluding his retirement plan income and Social Security retirement benefits, and the income generated by the trust would be distributed to Francis and not be made part of the corpus of the trust. The trustee had discretion to invade the corpus of the trust to distribute funds to Francis to maintain his standard of living.
d. The trustee would provide adequate funds to finance and satisfy the purchase of the house and furniture for the house which Krill contracted to buy.
e. The trust would provide income during Francis’ lifetime, provide a limited income for Krill for life after Francis’ death. At the conclusion of the trust, the remaining assets would transfer to the ultimate beneficiary, the University of Missouri, or to whatever charitable entity Francis so chooses.
f. That each party shall pay its own attorney’s fees.

The probate court read this settlement agreement into the record. The parties reduced it to writing, and the settlement agreement was included in the court’s written order file marked July 16, 1998. In its order, the court further noted that “all matters in controversy between the parties to this action should be, and are hereby, disposed of in accordance with the terms of this Order and that all affirmative pleadings in this case should be, and are hereby, dismissed with prejudice.” Pursuant to the agreement, Francis dismissed the circuit action against Robert with prejudice.

Following the settlement, Francis and Krill were married in August 1998. Approximately nine months later, on May 14, 1999, Francis sued all his children in the Sebastian County Circuit Court, alleging two tort claims and asking for damages. Francis first claimed that his children unlawfully civilly conspired to initiate a guardianship proceeding against him, and that they made allegations under oath which they did not believe to be true to attempt to take control of his property. Second, Francis claimed that his children tortiously interfered with his completion of the real estate contract to buy the home. Francis claimed compensatory damages in the amount of $360,000 for loss of property because the settlement agreement into which he entered caused the creation of a trust funded in part by the sale of his Baldor Electric Company stock. The sale of this stock resulted in substantial tax consequences that required the trust to sell more stock to pay the taxes. Francis also claimed compensatory damages in the form of $20,000 in attorney’s fees for having to defend the guardianship proceeding. Finally, Francis also claimed $500,000 in punitive damages “for their intentional acts designed to injure Plaintiff, by extortion of the guardianship proceeding which was designed to prevent Plaintiff from completing the Contract, controlling his property and marrying Sherrian Krill.”

The children filed a motion to dismiss or transfer to probate and chancery court and their answer on June 21, 1999, arguing that the trust, not Francis, was the appropriate party to bring a claim for any alleged damages to the trust. Furthermore, the children alleged that Francis was not a party to the real estate contract and had no interest to bring the interference claim. The children noted that Francis did not attack the setdement agreement through the probate court, which retained jurisdiction over the parties in the claims decided by the settlement. They argued that these claims were barred by res judicata because they should have been pursued in the original complaint against Robert. In addition, the children requested that the case be transferred to a court of equity so that their equitable claims could be made to the court.

Francis responded on August 4, 1999, and the children replied on August 9, 1999. On September 22, 1999, the Sebastian County Circuit Court entered an order dismissing Francis’s complaint against the children finding that Francis’s claims were barred under the theories of res judicata and judicial estoppel. Specifically, the court found that the parties in this action were the same parties, by name or by privity, with the parties in the original complaint filed by Francis against Robert on June 29, 1998. As such, the court reasoned, the parties were bound by the terms of the settlement, and the causes of action, therefore, could not be raised in the new action. In addition, the court found that the doctrine of judicial estoppel barred Francis from taking inconsistent positions in successive cases with the same adversaries. Francis filed his notice of appeal on October 21, 1999. The children filed a notice of cross-appeal on October 29, 1999, but they have withdrawn the cross-appeal.

Standard of Review

Pursuant to Ark. R. Civ. P. 12(b) and (c), a motion to dismiss is converted to a motion for summary judgment when matters outside of the pleadings are presented to and not excluded by the court. See McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998); Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). Because it is clear from the wording of the order that the trial court considered matters outside of the pleadings, we review this appeal as one from summary judgment.

Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Ford v. Arkansas Game and Fish Comm’n, 335 Ark. 245, 979 S.W.2d 897 (1998); Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998). The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999); Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998), supp. opinion on denial of reh’g, 332 Ark. 189, 961 S.W.2d 712 (1998). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.

Res Judicata

On appeal, Francis argues that the circuit court erred in deciding that the doctrines of res judicata and judicial estoppel bar him from pursuing an action in tort against his children. Francis argues that res judicatadoes not apply to his daughters in this subsequent circuit .court action because the previous circuit court lawsuit only involved his son, and the daughters do not qualify as privies in the prior action to bar the present action against them. Francis also argues that the trial court erred in applying the doctrine of judicial estoppel. He avers that fact questions remain regarding whether the daughters justifiably relied on the settlement agreement in the probate case to believe that Francis would not sue them later in circuit court for the alleged torts thus making summary judgment inappropriate. He argues that their claims in the guardianship proceeding were “suspect at best” as evidenced by their willingness to settle the matter.

In response, the children argue that the trial court correctly applied both theories to bar Francis’s lawsuit in circuit court. They assert that the daughters were privies of Robert so that the dismissal in the settlement of Francis’s original lawsuit against Robert also acted as a dismissal of any related claims against the daughters under the theory of res judicata. Furthermore, they contend judicial estoppel bars this subsequent circuit court action because the actions about which Francis complains in the circuit court lawsuit were settled by agreement of all the parties, including Francis, and cannot be raised again. In addition, the children argue that Francis has no standing to bring an action for interference with the real estate contract because he was not the contracting party to that sale, and he, therefore, has no grounds on which to enforce the contract.

We agree with the circuit court that res judicata applies to bar Francis’s subsequent tort action against his children based on the settlement in probate court, which included the dismissal with prejudice of Francis’s original circuit court lawsuit against Robert. In Arkansas Louisiana Gas Co. v. Taylor, 314 Ark. 62, 858 S.W.2d 88 (1993), this court noted the elements of res judicata, stating:

Under the doctrine of res judicata or claim preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. [Citation omitted.] Privity of parties within the meaning of res judicata means “a person so identified in interest with another that he represents the same legal right.” Spears v. State Farm Fire & Casualty Ins., 291 Ark. 465, 725 S.W.2d 835 (1987). Res judicata bars not only the relitigation of claims which were actually litigated in the first suit, but also those which could have been litigated.

Arkansas La. Gas Co., 314 Ark. at 65. In addition, this court has noted that

[ T]he test in determining whether res judicata applies is whether matters presented in a subsequent suit were necessarily within the issues of the former suit and might have been litigated therein. . . . [W]hen the case at bar is based on the same events and subject matter as the previous case, and only raises new legal issues and seeks additional remedies, the trial court is correct to find the present case is barred by res judicata.

American Standard v. Miller Eng’g, 299 Ark. 347, 351, 772 S.W.2d 344, 346 (1989). The true reason for holding an issue to be res judicata is not necessarily the identity or privity of the parties, but instead to put an end to litigation by preventing a party who has had one fair trial on a matter from relitigating the matter a second time. Well v. Heath, 269 Ark. 473, 602 S.W.2d 665 (1980).

As stated above, the parties reached an agreement during the trial in the guardianship proceeding in probate court. This agreement, among many things, specifically noted that Francis’s original circuit court lawsuit against Robert would be dismissed with prejudice, and that “all matters in controversy between the parties to this action should be, and are hereby, disposed of in accordance with the terms of this Order and that all affirmative pleadings in this case should be, and are hereby, dismissed with prejudice.” Pursuant to the language in the settlement order, the action against Robert in circuit court and the remaining matters existing between the parties to the guardianship proceeding were dismissed with prejudice.

Pursuant to the settlement in probate court, Francis dismissed the circuit action against Robert with prejudice. The dismissal with prejudice of that action meets the requisite elements of res judicata. Of the five elements needed to satisfy the doctrine, the parties in their arguments particularly focus on the fourth and fifth. These elements require that the same claims were or could have been litigated in the first lawsuit and that the actions involve the same parties. Francis argues that the second circuit court action involved claims that were not included in the probate matter or in the first circuit court action against Robert. We disagree. Again, the settlement in probate court included dismissals with prejudice of “all matters in controversy between the parties” and “all affirmative pleadings.” Dismissal with prejudice is as conclusive of the rights of the parties as if there were an adverse judgment as to the plaintiff after a trial. Hicks v. Allstate Ins. Co., 304 Ark. 101, 799 S.W.2d 809 (1990). As intervenors, Northrip and Obermiller, as well as Krill, were as much parties to the settlement as were Robert and Francis. Consequently, there was a final adjudication on the merits of “all matters in controversy between the parties,” and it is reasonable that Northrip, Obermiller, and Robert relied on the language of the settlement order to believe that their dispute with their father had ended.

In addition, the original circuit court lawsuit between Francis and Robert included or could have included the same claims Francis subsequently charged in his second circuit court lawsuit against all three children. Once the circuit court dismissed with prejudice Francis’s claim against Robert, such a dismissal acted as an adjudication on the merits to bar this subsequent lawsuit. Francis conceded in his brief and at oral arguments that while the subsequent circuit court lawsuit could not succeed against Robert because of that dismissal with prejudice, the action remained viable against Northrip and Obermiller. Again, we disagree. The doctrine of res judicata applies to both the actual parties to a previous lawsuit and those in privity with them, see Arkansas Louisiana Gas Co., supra, and we hold that Northrip and Obermiller were privies of Robert in the original circuit court action. Therefore, the Circuit court’s dismissal with prejudice of Francis’s action against Robert acted as a dismissal with prejudice for Northrip and Obermiller.

We have noted that “privity of parties within the meaning of res judicata means ‘a person so identified with another that he represents the same legal right.’ ” Arkansas Louisiana Gas Co., 314 Ark. at 65; see also, 47 Am.Jur.2d Judgments § 663 (1995). We have never required strict privity in the application of res judicata, but instead have supported the idea that there must be a “substantial identity of parties” to apply the doctrine. See Rose v. Jacobs, 231 Ark. 286, 329 S.W.2d 170 (1959); Wells v. Heath, 269 Ark. 473, 602 S.W.2d 665 (1980). Flowever, we have found privity for purposes of res judicata between a husband and wife in a land dispute lawsuit, Collum v. Hervey, 176 Ark. 714, 3 S.W.2d 993 (1928) (holding that a tide quieted against a husband was conclusive against the wife who had not been a party in the original lawsuit), between a landlord and tenant, Phelps v. Justiss Oil Co., 291 Ark. 538, 776 S.W.2d 662 (1987) (holding that a successor in interest in land is in privity with its grantor such that a prior ruling against the grantor is binding against the successor), between a testator and his remote heirs, Hardie v. Estate of Davis, 312 Ark. 189, 848 S.W.2d 189 (1993) (holding that a setdement by a testator is binding on the remote heirs), between an insurer and its insured, Southern Farm Bureau Casualty Ins. Co. v. Jackson, 262 Ark. 152, 555 S.W.2d 4 (1977) (holding that privity exists where insurer provided defense of insured except where the interests of the insured and insurer conflicted), and between a bankrupt debtor and his trustee, Curry v. Hanna, 228 Ark. 280, 307 S.W.2d 77 (1957).

Here, we hold that Northrip and Obermiller were Robert’s privies because their interests “were so identified in interest with another” that they “represented the same legal right.” Their motion to intervene in the probate case specifically requested the court to appoint Robert, not themselves, as Francis’s guardian. It is clear from the pleadings that their interests were similar enough to Robert’s to make them privies, and that the dismissal of the circuit court lawsuit against Robert for claims of interference and malicious prosecution acted as a dismissal against the sisters. Having affirmed on the basis of res judicatatheve is no need to address the applicability of judicial estoppel.

Affirmed; motion to dismiss cross-appeal granted.

Arnold, C.J., dissents.

WH. “Dub” ARNOLD, Chiefjustice,

dissenting. Although I agree with the majority’s recitation of the applicable standard of review, I respectfully disagree with the majority’s application of that standard to the facts in the instant case. I cannot say that the circuit court did not err in finding that appellant’s claims are barred by the doctrine of res judicata. Res judicata, or claim preclusion, bars the relitigation of a subsequent suit when (1) the first suit resulted in a judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involved the same claim or cause of action which was litigated or could have been litigated but was not; and (5) both suits involved the same parties or their privies. Crockett & Brown, P.A. v. Wilson, 314 Ark. 578, 581, 864 S.W.2d 244, 246 (1993).

Applying the factors required to establish res judicata, I must concede that the Sebastian County Probate Court entered what purported to be a final order or judgment on the merits. In fact, the probate court expressly acknowledged in its July 16, 1998 order that “all matters in controversy between the parties to this action should be, and are hereby, disposed of in accordance with the terms of this Order and that all affirmative pleadings in this case should be, and are hereby, dismissed with prejudice.”

However, I disagree with the majority’s conclusion that the probate court had proper jurisdiction to enter its final order. This action began as a petition for guardianship. After a hearing on July 1, 1998, but before proceeding to a second day of trial, the parties entered into a “settlement agreement,” in other words, a contract. Unfortunately, the probate court incorporated the terms of that contract into its final order dismissing appellees’ guardianship petition. Notably, the July 16, 1998 order violates the court’s own April 1, 1998 order enjoining appellant from contracting or transferring property to a third person pending the outcome of the guardianship proceeding. Of course, there was no outcome because the action was dismissed. Further, the July 16, 1998 order embraces another direct violation of the April order, specifically, appellant’s contractual agreement to “transfer all of his assets into [a] trust.”

Most importantly, the probate court’s July 16, 1998 order violates the governing provisions of Ark. Code Ann. section 28-65-213. Because the guardianship action was dismissed prior to a final determination of incapacity, the probate court lost jurisdiction over the matter. Section 28-65-113(b) states that:

The burden of proof by clear and convincing evidence is upon the petitioner, and a determination of incapacity shall be made before consideration of a proper disposition.

(Emphasis added.) Flere, the probate court never made the required determination of incapacity and, thus, could not consider any disposition, including the parties’ alleged “settlement.”

The majority suggests in a footnote that the probate court retained jurisdiction after the petition was dismissed via Arkansas’ Conservator statute, Ark. Code Ann. section 28-67-101 to -111. Again, the record provides no basis for this leap of logic. Like the procedure for a guardianship proceeding, a conservatorship action must commence with the fifing of a petition for appointment of a conservator. This may be accomplished by verified petition of a relative or friend who represents to the probate court that a person is unable to manage his property because of his advanced age or physical disability. The record evidences that no such petition was filed in the instant case. Second, a party may voluntarily consent to the granting of a conservator petition. Nonetheless, a petition must be filed and a notice of hearing must be served, or waived. Then, only after a full hearing and examination of the petition may the probate court appoint a conservator to the estate. These are not the facts before us.

As to the third prong of res judicata, I cannot agree that the case was fully contested in good faith, as plainly demonstrated by appellant’s efforts to seek relief following the probate court’s adoption of the settlement agreement. Curiously, only three months prior to the final order, the probate court believed appellant was incapable of entering into such a contractual agreement and specifically enjoined him from transferring property to a third person (e.g., a trust).

The majority also declines to discuss the long-standing exceptions to res judicata: (1) fraud or collusion in the procurement of the first judgment, and (2) lack of jurisdiction. Here, both exceptions apply. Indeed, the essence of appellant’s circuit-court complaint challenges his children’s motivations for initiating the guardianship action against him. Of course, it is telling that once appellant agreed to his children’s terms, appellees willingly dismissed their petition for guardianship. The error occurred here when the probate court went beyond dismissing the petition to entering a disposition agreement that it no longer had jurisdiction to consider.

In the absence of a “determination of incapacity,” as required by Ark. Code Ann. section 28-65-113(b), the probate court exceeded its jurisdiction by entering its July 16, 1998 order including the parties’ settlement agreement. In light of the foregoing, I cannot agree with the majority that appellant’s claims are barred by res judicata nor can I say that the circuit court did not err by granting summary judgment in favor of appellees. Viewing the evidence in the fight most favorable to appellant, resolving any doubts against appellees, and finding that there remain genuine issues as to material facts, I believe it clear that the trial court erred by finding that appellees were entitled to a judgment as a matter of law.

I respectfully dissent.

       We note for purposes of subject-matter jurisdiction that the probate court did not lose jurisdiction of the matter-because the parties entered into an agreement dismissing the petition as to the need for guardianship of the person. The court retained jurisdiction for the purpose handling Francis’s assets consistent with Arkansas’s Conservators statute found at Ark. Code Ann. § 28-67-101-111.


source: Caselaw Access Project

author: Per CURIAM.

license: Public Domain

text:
    Senequa CHATT v. STATE of Arkansas
    CR 00-1299
    31 S.W.3d 867
    Supreme Court of Arkansas
    Opinion delivered December 7, 2000
    S. Butler Bernard, Jr., for appellant.
    No response.
   Per CURIAM.

Appellant Senequa Chatt, by and through her attorney, has filed a motion for rule on the clerk. The partial transcript reflects that the notice of appeal was filed on August 3, 2000, and that the record on appeal was thus due to be filed on November 1, 2000. The record was not tendered with the Supreme Court Clerk until November 2, 2000. Appellant’s attorney, S. Butler Bernard Jr., admits responsibility for tendering the record late.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. Jones v. State, 338 Ark. 29, 992 S.W.2d 85 (1999) (per curiam) (citing Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986) (per curiam)).

The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).


author: PER Curiam.

text:
    Elizabeth Gammon BROWN v. POST-PRISON TRANSFER BOARD et al.

    00-21
    32 S.W.3d 754
    Supreme Court of Arkansas
    Opinion delivered December 7, 2000

      Appellant, pro se.
    No response.
   PER Curiam.

Elizabeth Gammon Brown, an inmate of the Arkansas Department of Correction, lodged an appeal in this court from an order of the Circuit Court of Pulaski County denying a pro se petition for writ of certiorari, or, in the alternative, for declaratory judgment. Appellant Brown, who is proceeding pro se, sought, and was granted, access to the record lodged on appeal and an extension of time to file the appellant’s brief. Brown v. Post-Prison Transfer Board (March 25, 2000). Shordy before the appellant’s brief was due to be filed, appellant filed several motions. We denied the motions but extended the time to file the appellant’s brief to October 24, 2000. We specifically provided at that time that no further extensions of time to file the brief would be granted in light of the fact that the appeal was lodged here on January 6, 2000, and appellant had had since that time to prepare her brief. Brown v. Post-Prison Transfer Board, 00-21 (September 14, 2000). On October 2, 2000, appellant filed the motion which is now before us, asking that she be granted another extension on the grounds that she has a trial in federal court to prepare for and her legal materials have been stored against her will and access to them can only be gained “at [her] own risk.”

While incarcerated persons may have an increased burden in complying with procedural rules, this court has consistently held that all litigants, including those who proceed pro se, must bear responsibility for conforming to the rules of procedure or demonstrating a good cause for not doing so. Bragg v. State, 297 Ark. 348, 760 S.W.2d 878 (1988); Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986); Perry v. State, 287 Ark. 384, 699 S.W.2d 739 (1985); Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983). The pro se appellant receives no special consideration on appeal. See Gibson v. State, 298 Ark. 43, 764 S.W.2d 617 (1989). Appellant Brown was allowed from January 6, 2000, to October 24, 2000, to file her brief. We do not find that she has stated sufficient cause to grant another extension of time.

Motion denied and appeal dismissed.


author: PER CURIAM.

text:
    IN RE: Henry Thomas JONES, IV (Arkansas Bar ID # 97018)
    00-1011
    31 S.W.3d 871
    Supreme Court of Arkansas
    Opinion delivered December 7, 2000
   PER CURIAM.

By per curiam opinion delivered November 2, 2000, Henry Thomas Jones, IV, was ordered to appear before this court on November 30, 2000, to show cause why he should not be held in contempt for disobeying a consent order of discipline issued on February 1, 2000, by the Supreme Court Committee on Professional Conduct. The Committee found that Mr. Jones violated the Procedures of the Arkansas Supreme Court Regulating the Professional Conduct of Attorneys and ordered him to pay a $100 fine and costs in the amount of $6.17. The Committee petitioned the court alleging that Mr. Jones neither paid the $106.17, nor communicated with the Committee regarding why he had not paid the sanction. Mr. Lynn Williams, counsel for the Committee, and Jones appeared before this court on November 30, 2000, and Mr. Jones entered a plea of guilty to the contempt citation.

Based on the foregoing, we hold that Mr. Jones is in contempt of court for failing to pay the sanction ordered by the Committee on Professional Conduct, and assess a fine of $50.00.


text:
    Barron B. LEWIS v. STATE of Arkansas
    CR 00-1293
    31 S.W.3d 871
    Supreme Court of Arkansas
    Opinion delivered December 7, 2000
    S. Butler Bernard, Jr., for appellant.
    No response.
   PER CURIAM.

Petitioner, Barron B. Lewis, by his attorney, S. Butler Bernard, Jr., has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

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

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


text:
    Romney Luther MILES v. STATE of Arkansas
    CR 00-635
    31 S.W.3d 868
    Supreme Court of Arkansas
    Opinion delivered December 7, 2000

      Edgar R. Thompson, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   PER CURIAM.

On January 25, 1999, Romney Luther Miles was convicted of aggravated robbery and kidnaping and was sentenced to life in prison as an habitual offender and fined $10,000. Miles sought appointed representation based upon indigency. However, the trial court denied Miles’s motion because Miles had posted a $100,000 appearance bond. At trial, Miles was represented by his retained attorney, Edgar Thompson. After entry of the conviction order, Thompson filed a timely notice of appeal and instructed Miles that he would have to pay the costs of the transcript and court reporter, as well as an attorney’s fee for the appeal. Thompson provided Miles an estimate of the cost. Miles did not pay, and the transcript has not been completed or certified. Thompson has never moved this court to be relieved as counsel. As a result, the appeal has gone unperfected.

Miles subsequently filed a pro se motion for belated appeal, and he appended to the motion an affidavit of indigency and seeks to proceed informa pauperis, if allowed to proceed with the appeal. On October 18, 2000, this court issued an unpublished per curiam order granting Miles’s pro se motion treating it as a motion for rule on the clerk. Miles v. State, No. CR 00-635 (Ark. Sup. Ct. Oct. 18, 2000). In that order, this court directed Thompson to file a petition for writ of certiorari to complete the record, and Thompson filed that pleading on October 30, 2000. In the petition, Thompson noted that Miles had not been declared indigent but had not paid fees or costs, and that Thompson requested the writ to compel the Lonoke County Circuit Clerk and the court reporter to complete the transcript. However, the petition fails to indicate who will pay for the completion of the record.

Because the petition for writ of certiorari fails to indicate who will pay for completion and filing of the record, this case is remanded to the Lonoke County Circuit Court, and Miles is directed to file a motion to proceed in forma pauperis to allow the circuit court to determine whether Miles is indigent or must pay for the record on appeal. The burden of establishing indigency is on the defendant claiming indigent status. In considering whether an appellant is indigent, which is a mixed question of fact and law, some of the factors to be considered are: (1) income from employment and governmental programs such as social security and unemployment benefits; (2) money on deposit; (3) ownership of real and personal property; (4) total indebtedness and expense; (5) the number of persons dependent on the appellant for support; (6) the cost of the transcript on appeal; and (7) the Hkely fee of retained counsel for an appeal if counsel’s fee has not already been paid. Hill v. State, 305 Ark. 193, 805 S.W.2d 651 (1991). Able-bodiedness, the level of education of the appellant, and whether the appellant is incarcerated are also to be considered. An appellant need not be destitute to qualify as an indigent. Hill, supra.

The trial court is directed to enter Findings of Fact and Conclusions of Law within sixty days and submit the findings and conclusions to this court on the determination of indigency.

Remanded.


text:
    Quabina Rasheen PENSON v. STATE of Arkansas
    CR 00-1300
    31 S.W.3d 870
    Supreme Court of Arkansas
    Opinion delivered December 7, 2000
    S. Butler Bernard, Jr., for appellant.
    No response.
   PER CURIAM.

Appellant Quabina Rasheen Penson, by and through his attorney, has filed a motion for rule on clerk. His attorney, S. Butler Bernard, Jr., states in the motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an 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.


text:
    Oscar STILLEY and John Doe v. CITY of CONWAY and Conway Regional Medical Center, Inc. d/b/a Conway Regional Health System; Marcus Vaden, Carl Roebuck, and Lawson Veasley, In Their Official Capacity as County Election Commissioners of Faulkner County, Arkansas; Michael O. Garrett, In His Official Capacity as City Clerk for the City of Conway
    00-1144
    31 S.W.3d 870
    Supreme Court of Arkansas
    Opinion delivered December 7, 2000

      Appellant, pro se.
    No response.
   PER CURIAM.

On November 8, 2000, appellant Oscar Stilley, appearing pro se, filed a petition for writ of certiorari, requesting that the trial court clerk be directed to complete the record on appeal. We grant Mr. Stilley’s petition, grant a thirty-day extension to complete the record, and direct the Supreme Court Clerk to issue a writ to the Faulkner County Circuit Clerk for the purpose of obtaining the transcript of testimony and exhibits in this case. The court reporter shall prepare a transcript of the trial for appeal and file the record with the supreme court clerk within thirty days from the date of this per curiam order. An appropriate briefing schedule will then be set by the clerk of this court. Mr. Stilley’s motion for extension of time to file the brief on appeal is, therefore, moot.


author: Wh. “Dub” Arnold, Chief Justice.

text:
    Carl RODGERS and Norlene Rodgers v. CWR CONSTRUCTION, INC.
    00-655
    33 S.W.3d 506
    Supreme Court of Arkansas
    Opinion delivered December 14, 2000
    [Petition for rehearing denied January 18, 2001.]

      Boswell, Tucker & Brewster, by: Dennis J. Davis, for appellants.

      Anderson, Murphy & Hopkins, L.L.P., by: Randy P Murphy and Scott D. Provencher, for appellee.

       Hannah, J., not participating.

   Wh. “Dub” Arnold, Chief Justice.

The Court of Appeals certified this personal-injury case to us as a subsequent appeal following two appeals previously decided in this court. See Richardson v. Rodgers, 334 Ark. 606, 976 S.W.2d 941 (1998); and Richardson v. Rodgers, 319 Ark. 402, 947 S.W.2d 778 (1997). Our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. 1-2(a)(7) (2000). Appellant Carl Rodgers, an employee of I-K Electric, a subcontractor of appellee CWR Construction, was injured in a construction-site accident at the Pulaski County Courthouse on May 24, 1994. While Rodgers was pulling feeder wires out of an electrical panel in the basement, a ten- to twelve-foot long, ten-inch diameter section of water pipe, suspended from the ceiling by a c-clamp attached to an all-thread rod, fell and struck him. Rodgers subsequently filed a complaint in White County Circuit Court against appellee seeking compensatory and punitive damages for his alleged injuries, including cervical neck strain, multiple herniated disks, right-upper-extremity radiculopathy, right ankle sprain, post-traumatic headache syndrome, and impotency. Rodgers’s wife, Norlene Rodgers, also claimed damages for loss of consortium and for punitive damages.

It is undisputed that appellant was not wearing a hard hat at the time of the accident. As a result, appellee raised Rodgers’s nonuse of the safety device as an affirmative defense of comparative fault. Appellants objected to the introduction of any such evidence at trial. However, the trial court permitted the introduction of evidence that Rodgers was not wearing a hard hat, as required by IK Electric’s and appellee’s policies as well as OSHA safety regulations. In reaching its decision, the trial court relied, in part, upon appellee’s claim that Dr. Terrence Yates, Rodgers’s treating physician following the accident, would testify that a hard hat would have made a difference regarding the laceration on Rodgers’s head and would have made some difference in the nature and extent of his other injuries. Ultimately, no such evidence was elicited at trial. In any event, the trial court declined to submit either of two proffered curative instructions to the jury.

The parties also agreed that appellee lost the clamp and bolt that held the offending water pipe to the ceiling prior to the accident and that appellee never received copies of a safety report prepared by appellee. In response to appellants’ request that the jury be instructed regarding spoliation of evidence, the trial court rejected a non-AMI jury instruction. The trial court noted that the clamp, bolt, and safety report were available at the time appellants’ lawsuit was initiated. Further, the trial court determined that appellants presented no proof that appellee willfully lost or intentionally destroyed the evidence.

During the four-day trial held on November 2, 3, 4, and 5, 1999, appellants also objected to certain testimony by Dr. Stephen Cathey, a neurological surgeon. Dr. Cathey conducted a surgical consultation with Rodgers including clinical examinations and diagnostic studies to determine if he would benefit from having a surgical procedure to relieve stenosis and provide room for Rodgers’s spinal cord. Ultimately, Dr. Cathey concluded that surgery was unwarranted and observed that Rodgers had returned to preinjury status. He also opined that appellant’s current disability related to pre-existing injuries rather than the May 1994 incident. In other words, Dr. Cathey surmised that the accident aggravated Rodgers’s underlying neck problems.

Over appellants’ objection, Dr. Cathey proceeded to testify regarding the issue of secondary-gain motivation, (i.e., a behavior that is rewarded). For example, in a personal-injury case, Dr. Cathey explained that the secondary gain is the promise of a financial settlement or award that may come after an industrial accident. However, when cross-examined, Dr. Cathey admitted that he was not giving testimony that it was his opinion that any secondary gain was involved in the instant case. In light of the doctor’s admission, appellants objected to the introduction of any evidence regarding secondary-gain motivation because (1) Dr. Cathey could not say that Rodgers had secondary-gain motivation within a reasonable degree of medical certainty, and (2) the danger of unfair prejudice outweighed any probative value. The trial court disagreed and allowed the testimony.

On appeal, appellants contend that the trial court erred on five bases: (1) by admitting evidence regarding Rodgers’s failure to wear a hard hat; (2) by failing to instruct the jury to disregard that evidence when appellee failed to meet its burden of proof on the affirmative defense of comparative fault; (3) by excluding the testimony of M.I. Starns, appellants’ witness who was prepared to testify that the failure to wear a hard hat did not contribute to the severity of Rodgers’s injuries; (4) by failing to give an instruction on the spoliation of evidence; and (5) by admitting Dr. Cathey’s testimony regarding secondary-gain motivation. We find merit in appellants’ fifth point and reverse and remand for further proceedings consistent with this opinion.

I. Issues regarding the hard hat

A. Admission of evidence of nonuse

Appellants’ first point on appeal contests the trial court’s decision to admit evidence that Rodgers was not wearing his hard hat at the time of the accident. Appellants moved in limine to exclude any evidence of nonuse of the safety device but, based upon appellee’s assertions that Dr. Yates would testify that wearing a hard hat would have made some difference in connection with at least the nature and extent of appellant’s injuries, the trial court denied the motion. At trial, however, Dr. Yates testified that, in his opinion, a hard hat would not have made any difference with regard to the spinal injury and may have made some difference in connection with the laceration.

At the time of the pretrial hearing on appellants’ motion in limine, the trial court had a reasonable expectation that relevant evidence would be forthcoming at trial. Moreover, the decision to admit evidence is within the trial court’s discretion. On appeal, we will not reverse a trial court’s ruling on the admission of evidence absent an abuse of that discretion nor will we reverse absent a showing of prejudice. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), cert. denied, 117 S. Ct. 246 (1996). Here, we cannot say that the trial court erred by admitting the evidence when appellee claimed that relevant testimony would be presented at trial and when appellant’s employer, appellee, and OSHA regulations required the use of a hard hat on the job site.

B. Failure to submit limiting instruction

Appellants’ second issue on appeal challenges the trial court’s refusal to submit a curative instruction to the jury cautioning it to disregard any evidence of Rodgers’s failure to wear a hard hat as evidence of comparative fault. Notably, a review of the record demonstrates that appellee failed to present any evidence that the hard hat would have made any difference in diminishing appellant’s spinal injuries. In fact, the trial court expressly acknowledged that there was no evidence that the hard hat would have prevented any spinal injury. In contrast to what appellee predicted, Dr. Yates testified within a reasonable degree of medical certainty that a hard hat would not have made a significant, or even small, difference with regard to Rodgers’s injuries. Indeed, the only evidence that the hard hat would have made any difference was with respect to appellant’s laceration.

However, the trial court denied appellants’ motion to offer the jury one of two limiting instructions. The first proffered instruction cautioned the jury to disregard Rodgers’s failure to wear a hard hat “[w]hen determining whether any negligence on the part of Carl Rodgers was a proximate cause for any damages.” The second instruction stated that the jury could consider the evidence only “with regard to the issue of what damages, if any, Carl Rodgers is entided to for the laceration to his head.”

Appellants correctly argue that appellee bears the burden of proof for establishing its affirmative defense of comparative fault. See Baumgartner v. Rogers, 233 Ark. 387, 345 S.W.2d 476 (1961); Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993). Appellee must prove that Rodgers’s failure to wear a hard hat was a proximate cause of any of his injuries, and we require the jury to base its decision upon proof, not mere speculation or conjecture. See Cates v. Brown, 278 Ark. 242, 247, 654 S.W.2d 658, 661 (1983). At best, appellee offered evidence that the hard hat may have made some difference with respect to the laceration injury. Other evidence indicated that a hard hat was required on the job site. Although the proof offered at trial may have warranted a limiting instruction, we cannot say that the trial court erred by refusing to submit either of the two proffered instructions. The first instruction is not supported by the evidence presented at trial, and the second contains an improper comment upon the evidence. Accordingly, we affirm the trial court on this point.

C. Exclusion of testimony of M.I. Starns

For their next point on appeal, appellants contend that the trial court abused its discretion by excluding testimony from M.I. Starns, appellants’ expert witness who was prepared to testify that the hard hat would not have diminished the severity of Rodgers’s injuries. Starns claimed that he had done extensive hard-hat research over the past fifteen years for OSHA, ANSI, and industrial firms. He also reported testifying in other hard-hat lawsuits when expert testimony was needed to corroborate the lack or severity of injuries. In Starns’s opinion, given the manner in which the pipe knocked appellant down, Rodgers would sill have sustained his injuries with or without a hard hat.

In response, appellee claims that Starns is no “expert.” Starns never spoke with Rodgers, never investigated the job site, is not a licensed engineer or medical doctor, and does not hold a four-year degree from any institution, despite his past claims to the contrary. Moreover, the determination of an expert’s qualifications is a matter within the trial court’s discretion. First Commercial Trust Co. v. Rank, 323 Ark. 390, 915 S.W.2d 390 (1996).

Appellants counter that this court has been liberal concerning expert’s qualifications and ability to testify. See Ark. R. Evid. 702; Dildine v. Clark Equip. Co., 282 Ark. 130, 666 S.W.2d 692 (194). In Dildine, we cautioned that “too rigid a standard should be avoided, and if some reasonable basis exists from which it can be said the witness has knowledge of the subject, his evidence is admissible.” Id. Adopting this reasoning, appellants suggest that the relative weakness or strength of Starns’s testimony should be a matter of weight and credibility for the jury rather than admissibility. Under the instant facts, we disagree.

In light of our standard of review, we decline to overturn the trial court’s decision to disallow Starns’s testimony. In any event, Starns’s testimony was merely cumulative because Dr. Yates, a qualified expert, testified that the failure to wear a hard hat would not have made a difference in Rodgers’s spinal injuries. Accordingly, we find no basis for finding that the trial court abused its discretion in excluding M.I. Starns’s testimony.

II. Failure to submit spoliation instruction

Appellants claim that the trial court erred by failing to give the jury an instruction on the spoliation of evidence. Spoliation is defined as “the intentional destruction of evidence and when it is established, [the] fact finder may draw [an] inference that [the] evidence destroyed was unfavorable to [the] party responsible for its spoliation.” Goff v. Harold Ives Trucking Co., Inc., 342 Ark. 143, 146, 27 S.W.3d 387, 388 (2000) (citing Black’s Law Dictionary 1401 (6th ed. 1990)). Appellants insist that the record clearly reveals that the appellee was in physical possession and control of the pipe, clamp, and bolt involved in the accident and of certain pre-demolition safety reports. Unquestionably, the clamp, bolt, and safety report were important pieces of evidence. Because the evidence was subsequendy lost or not received, appellants asked the court to instruct the jury as follows:

Where some instrument, which is a part of the material evidence of the case, has been destroyed or lost, the presumption arises that if it had been produced, it would have been against the interest of the party destroying or losing it.

or:

If a party fails to produce evidence which is under his control and reasonably available to him and not reasonably available to the adverse party, then you may infer the evidence is unfavorable to the party who could have produced it and did not. ■

Appellee argued that the instructions had no foundation in Arkansas authority and no evidence indicated that appellee acted intentionally. As a result, appellee suggested that appellants’ rebanee on cited authority was misplaced. See, e.g., Middleton v. Middleton, 188 Ark. 1022, 68 S.W.2d 1003 (1934). We agree, and we affirm the trial court’s decision rejecting appellants’ spoliation instructions.

First, the trial court specifically found that the evidence was not intentionally lost or destroyed. Second, the trial court permitted counsel to argue the same points to the jury event though it elected not to submit the instructions. Third, and most importantly, the evidence was available in appellee’s office shortly after the accident, but no meaningful discovery commenced until five years following the accident. In the absence of any intentional misconduct, we cannot say that the trial court abused its discretion by fading to give the jury an instruction on spoliation of evidence.

III. Admission of secondary-gain expert testimony

Appellants’ final point on appeal is that the trial court erred by allowing Dr. Stephen Cathey to testify regarding secondary-gain motivation. They claim that the highly prejudicial testimony significantly outweighed any slight probative value. We find merit in appellants’ argument, and we reverse and remand on this issue. Dr. Cathey explained the concept of secondary-gain motivation to the jury at some length and implied that plaintiffs in personal-injury cases may exaggerate their symptoms in order to receive some financial benefit. In fact, Dr. Cathey opined that in those situations, doctors “frequently see secondary gain.” He also commented that a lack of objective findings, as Dr. Cathey had observed in Rodgers’s case, enters into the possibility of diagnosing someone with secondary gain.

Significantly, Dr. Cathey affirmed during cross-examination that he was not testifying that he believed that appellant was malingering or implying that Rodgers had secondary gain involved in this case. Dr. Cathey unequivocally stated that he was not giving testimony that it was his opinion that there was any secondary gain involved in appellant’s case. As a result, we must agree with appellants that the testimony was irrelevant, particularly when Dr. Cathey was unprepared to state that it was a relevant issue in Rodgers’s case. Ark. R. Evid. 401 defines relevant evidence as “evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Given Dr. Cathey’s admission, we conclude that the testimony should have been excluded pursuant to Ark. R. Evid. 402, which states that evidence that is not relevant is not admissible.

Further, even if the evidence had some slight relevance, the testimony should have been excluded per Ark. R. Evid. 403 because its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury. The jury could easily have concluded that secondary-gain issues were relevant to the case. In light of the foregoing, we hold that the trial court abused its discretion by admitting Dr. Cathey’s expert testimony regarding secondary-gain motivation.

Reversed and remanded.

IMBER, J., not participating.


author: "VVTH. “Dub” Arnold, Chief Justice.

text:
    STATE of Arkansas v. Betty THOMPSON
    CR 00-936
    34 S.W.3d 33
    Supreme Court of Arkansas
    Opinion delivered December 14, 2000

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellant.

      David W. Talley, Jr., for appellee.
   "VVTH. “Dub” Arnold, Chief Justice.

The State has W. brought this appeal to determine whether it is precluded by collateral estoppel from charging a defendant with “knowingly” committing an offense when the defendant has already been convicted of “negligently” committing a separate offense involving different elements but arising out of the same actions. We hold that the collateral estoppel effect attributed to the Double Jeopardy Clause does not preclude a defendant from being charged with a subsequent offense arising out of the same actions when the elements of the offenses are different. As such, we reverse and remand the case to the trial court.

On July 22, 1999, appellee Betty Thompson entered a plea of nolo contendere to violating Ark. Code Ann. § 5-28-103(c)(l) (Repl. 1997), which states that “any person of caregiver who neglects an endangered or impaired adult. . . causing serious physical injury or substantial risk of death, shall be guilty of a Class D felony[.]” “Neglect,” as defined in Ark. Code Ann. § 5-28-101(3) (Repl. 1997) requires that a person act negligently. Thompson’s plea arose from her failure to properly care for her husband.

Subsequent to her plea, Thompson’s husband died, allegedly as a result of her abuse. The State charged her with second-degree murder. Arkansas Code Annotated § 5-10-103(a)(l) (Repl. 1997) states that “[a] person commits murder in the second degree if he knowingly causes the death of another person under circumstances manifesting an extreme indifference to the value of human life.”

Prior to trial, Thompson moved for dismissal in the circuit court, claiming that her former admission of guilt to negligence in the abuse of her husband precluded the State from seeking a second-degree-murder conviction for “knowingly” causing his death. Specifically, Thompson contended that under the doctrine of collateral estoppel, the finding that she acted negligently in committing adult abuse decided an issue of ultimate fact; and, therefore, the State could not then seek to attribute a greater culpable mental state to her for allegedly causing her husband’s death. The State responded below by arguing that, pursuant to Ark. Code Ann. § 5-2-203 (c) (Repl. 1997), one who acts “knowingly” also acts “negligently,” and that the finding that Thompson acted negligently in committing adult abuse did not decide the issue of whether she acted knowingly in causing her husband’s death.

Based on the foregoing arguments, the circuit court granted Thompson’s motion to dismiss, finding that collateral estoppel prevented the State from charging her with second-degree murder and the lesser-included offense of manslaughter. The State now appeals the circuit court’s decision to grant Thompson’s motion, contending that the trial court was in error and that collateral estoppel does not apply. We agree with the State and reverse and remand the case, as a result.

I. Propriety of the Appeal

The State brings this appeal under Arkansas Rule of Appellate Procedure — Criminal 3(b) and (c), asserting that the trial court improperly granted appellee’s motion to dismiss the second-degree-murder charge. The State maintains, as it is required to do under Rule 3(c), that the correct and uniform administration of justice requires this Court’s review of the trial court’s order. Before addressing the merits of the State’s claim in this case, we must first decide whether this issue is properly before us under Rule 3(c). Specifically, we must decide whether the correct and uniform administration of justice requires us to review this point.

This Court held in the case of State v. Gray, 330 Ark. 364, 955 S.W.2d 502 (1997), that our review of State’s appeals is not limited to cases that would establish precedent. Still, this Court held, quoting from our decision in State v. Stephenson, 330 Ark. 594, 955 S.W.2d 518 (1997):

We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. Rule 3(c). As a matter of practice, this court has only taken appeals “which are narrow in scope and involve the interpretation of law.” State v. Banks, 322 Ark. 344, 345, 909 S.W.2d 634, 635 (1995). Where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994). Appeals are not allowed merely to demonstrate the fact that the trial court erred. State v. Spear and Boyce, 123 Ark. 449, 185 S.W. 788 (1916).

330 Ark. at 595. We further held in State v. Gray, supra, that where the trial court acts within its discretion after making an evidentiary decision based on the facts at hand, or even a mixed question of law and fact, this Court will not accept an appeal by the State under Ark. R. App. P.—Crim. 3(c). Id. at 367, quoting State v. Hart, 329 Ark. 582, 952 S.W.2d 138 (1997).

Certainly, the instant case involves a question of interpretation of law, not fact. This particular application of the doctrine of collateral estoppel to the Double Jeopardy Clause is an issue of first impression in Arkansas, in that it involves a subsequent charge for the same conduct of an offense involving a greater culpable mental state than the offense for which appellee was first convicted. As such, the resolution of the issue in this case clearly requires an interpretation of our criminal rules and constitution that could have widespread ramifications. As such, we accept the appeal and will address the merits.

II. Merits of the Case

The State contends that the trial court erred in granting appellee’s motion to dismiss and finding that the collateral estoppel effect attributed to the Double Jeopardy Clause prevented the State from charging appellee with second-degree murder and the lesser-included offense of manslaughter when she had already been convicted of abuse of an adult, which required a lower culpable mental state than second-degree murder. The State contends that because the elements of the subsequent offense were not the same as the elements involved in the offense for which she was already convicted, the doctrine of collateral estoppel did not preclude the State from charging appellee with second-degree murder. We agree.

When an issue of ultimate fact has once been determined by a valid and final judgment, collateral estoppel precludes relitigation of that issue between the same parties in any future proceeding. E.g., Edwards v. State, 328 Ark. 394, 943 S.W.2d 600, cert. denied, 522 U.S. 950 (1997) (quoting Schiro v. Farley, 510 U.S. 222, 232 (1994)). In order to establish collateral estoppel, proof of the following is required: 1) the issue sought to be precluded must be the same as that involved in the prior litigation; 2) the issue must have been actually litigated; 3) the issue must have been determined by a final and valid judgment; and 4) the determination must have been essential to the judgment. Edwards, 328 Ark. at 401-02, 943 S.W.2d at 603.

The State contends that the fact appellee was found to have negligently abused her husband did not determine the issue of whether she had knowingly caused his death and, therefore, the doctrine of collateral estoppel does not apply. We agree. Appellee asserts that the collateral estoppel effect attributed to the Double Jeopardy Clause does apply to this situation and that having previously been found' to have acted negligently, the State cannot now ask that she be found to have acted with a greater culpable mental state. Appellee claims that her former prosecution and conviction for adult abuse is an affirmative defense to a subsequent prosecution for second-degree murder because both offenses related to the same conduct. Appellee further intimates that the negligent abuse of an impaired adult, to which she pled in the first instance, should be considered a lesser-included offense to second-degree murder. Appellee’s arguments, however, are flawed, as negligent abuse of an impaired adult is neither a lesser-included offense of second-degree murder, nor is the “same conduct” analysis, standing alone, the appropriate analysis to determine whether double jeopardy applies.

First, Ark. Code Ann. § 5-1-110(b) (Repl. 1997) defines a lesser-included offense as follows:

An offense is so included [in another] if:
(1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
(2) It consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.

Certainly, proof of different elements are required between the two offenses at issues here. Negligent abuse of an impaired adult is not the same as, nor does it amount to,- an attempt to knowingly cause the death of a person. Negligent abuse of an impaired adult simply does not fit the definition of a lesser-included offense of the offense of murder, at any degree.

Next, Ark. Code Ann. § 5-1-113(1) (Repl. 1997) states in pertinent part:

A former prosecution is an affirmative defense to a subsequent prosecution for a different offense under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction . . . and the subsequent prosecution is for:
(A) Any offense of which the defendant could have been convicted in the first prosecution; or
(B) An offense based on the same conduct, unless:
(i) The offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining.each of the offenses is intended to prevent a substantially different harm or evil; or
(ii) The second offense was not consummated when the former trial began.

[ Emphasis added.] As settled above, each of the crimes at issue here clearly requires proof of an element not required by the other; further, the law defining each of the offenses is obviously intended to prevent a different harm.

The Double Jeopardy Clauses ofboth the United States and Arkansas constitutions protect criminal defendants from (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Wilcox v. State, 342 Ark. 388, 39 S.W.3d 434 (2000); North Carolina v. Pearce, 395 U.S. 711 (1969); Zawodniak v. State, 339 Ark. 66, 3 S.W.3d 292 (1999). Where double jeopardy applies, “its sweep is absolute.” United States v. DiFrancesco, 449 U.S. 117, 131 (1980) (quoting Burks v. United States, 437 U.S. 1 (1978)). However, the Double Jeopardy Clause “imposes no limitation whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside.” Id. at 131 (quoting North Carolina v. Pearce, supra). There is only one exception to this rule: “the Double Jeopardy Clause prohibits retrial after a conviction has been reversed because of insufficiency of the evidence.” Id. at 131; see also Burks v. United States, supra. Clearly, that is not the case here.

The U.S. Supreme Court has long held that in both the multiple-punishment and multiple-prosecution contexts, where the two offenses for which the defendant is punished or tried cannot survive the “same-elements” test, the double jeopardy bar applies. See United States v. Dixon, 509 U.S. 688 (1993); Brown v. Ohio, 432 U.S. 161 (1977); Blockburger v. United States, 284 U.S. 299 (1932) (multiple punishment); Gavieres v. United States, 220 U.S. 338 (1911) (successive prosecutions). The same-elements test, commonly referred to as the “Blockburger” test, is as follows:

[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Gavieres v. United States, 220 U.S. 338, 342, and authorities cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: “A single act may be an offense against two statutes, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.”

Blockburger, 284 U.S. at 304. The Supreme Court reaffirmed the Blockburger analysis in United States v. Dixon, supra, therein denouncing the “same-conduct” test. The Court stated in Dixon:

The collateral estoppel effect attributed to the Double Jeopardy Clause, see Ashe v. Swenson, 397 U.S. 436 (1970), may bar a later prosecution for a separate offense where the Government has lost an earlier prosecution' involving the same facts. But this does not establish that the Government “must. . . bring its prosecutions . . . together.” It is entirely free to bring them separately, and can win convictions in both.

Dixon, 509 U.S. at 705 (emphasis in original).

Clearly, in the instant case, the State won the earlier prosecution in that the appellee pled to that offense. Further, when applying the Blockburger same-elements test, as well as Ark. Code Ann. §§ 5-1-110 and 5-1-113, it is clear that each of the two offenses contained an element neither required to be proven by the other nor included in the other. As such, we hold that double jeopardy does not apply and that the trial court erred in this case by barring a subsequent prosecution for second-degree murder. The case is, therefore, reversed and remanded.


author: TOM Glaze, Justice.

text:
    GENERAL ACCIDENT INSURANCE COMPANY of America v. Teresa JAYNES, Special Administrator of the Estate of David Laroy Jaynes, Deceased
    99-1377
    33 S.W.3d 161
    Supreme Court of Arkansas
    Opinion delivered December 14, 2000

      Daggett, Van Dover, Donovan & Perry, PLLC, by: Jim Pat Flowers and James R. Van Dover, for appellant.

      David A. Hodges, for appellee.
   TOM Glaze, Justice.

This appeal ensues from a car accident on February 24, 1992, which resulted in the death of David Jaynes, a truck driver for J. T. Shannon Lumber Company. Appellant General Accident Insurance Company, Shannon’s workers’ compensation carrier, paid more than $101,000 in benefits to David’s wife and two children. On April 19, 1994, the Faulkner County Probate Court appointed David’s wife, Teresa, as special administrator of David’s estate (hereafter the Estate) for the purpose of filing a wrongful death action against those parties responsible for David’s death. The Estate brought suit for wrongful death on April 26, 1994, in the Faulkner County Circuit Court against defendants Peterbilt Motor Company; Paccar, Inc., the owner of Peterbilt; and Lend Lease Truck, Inc., which owned the truck driven by David. On November 30, 1994, General Accident was granted leave to intervene in the circuit court lawsuit wherein it claimed entitlement under Ark. Code Ann. § 11-9-410 (Repl. 1996) to a first lien on two-thirds of the Estate’s net recovery against the defendants. The Estate answered, denying General Accident’s claim to a lien.

On February 4, 1998, the Estate and the defendants in the wrongful death action reached a settlement whereby defendants would pay the Estate $18,500.00, but General Accident reasserted its statutory hen. The defendants responded by confirming that the setdement with the Estate had been reached, but they stated the agreement reached was not a “settlement around” General Accident. Defendants moved to interplead the $18,500.00 settlement proceeds, requesting the circuit court’s approval and this court’s directive that the Estate take all necessary steps to consummate the setdement, including the execution of valid lien, a pro rata discharge, an indemnity agreement in completion of all necessary probate court proceedings, and a dismissal with prejudice. A hearing was held on July 27, 1998, at which counsel for the Estate and General Accident attended and made their respective arguments. Three months later, on October 28, 1998, the circuit court entered its order finding the Estate had entered into a setdement in the amount of $18,500.00 with the defendants, and the court approved the settlement as required by Ark. Code Ann. § 11 — 9—410(c) (Repl. 1996) of the Workers’ Compensation Act. However, it determined the settlement amount was insufficient to make the David’s beneficiaries and survivors whole; therefore, General Accident’s right of subrogation did not arise. The circuit court further held that the $18,500.00 settlement funds should be released to the Estate, free and clear of any subrogation interest or Hen claimed by General Accident, and that, upon the probate court’s approval of the settlement, all claims in the case should be dismissed for the reasons stated by the circuit court in its letter opinion.

Before the Estate and defendants obtained the probate court’s approval, General Accident filed an appeal from the circuit court’s October 28, 1998, order and, on February 11, 1999, lodged the record of that proceeding with the court of appeals. Meanwhile, the Estate, without giving notice to General Accident, obtained the probate court’s approval of the Estate’s and defendants’ settlement in the amount of $18,500.00. Specifically, the probate order entered on February 24, 1999, showed the amount satisfied all of the estate’s claims against the defendants under the wrongful death action. The probate court further authorized the release and indemnity agreement as a complete release and pro rata discharge of all claims. The probate court made no reference to General Accident, nor was General Accident shown as a party to the proceedings when the February 24 order was entered.

Apparently, on March 22, 1999, General Accident learned of the February 24, 1999 probate court order, which prompted it on March 25 to file a motion to intervene in the probate proceeding seeking a stay of the probate court’s order. General Accident did not request the probate court to set aside its Februray 24 order, but instead, on May 20, 1999, requested that the court extend General Accident time to file a notice of appeal from the February 24 order, because General Accident had no notice of the order whereby the probate court approved the Estates and defendants’ settlement. General Accident asserted that it was entitled to an extension to appeal under Ark. R. App. P. Civ. 4(b)(3) (2000). That rule provides that, upon a showing of failure to receive notice of the judgment, decree, or order from which an appeal is sought and a determination that no party would be prejudiced, the trial court may, upon motion filed within 180 days of entry of the judgment, decree, or order, extend the time for filing the notice of appeal.

On August 27, 1999, the probate court granted General Accident additional time for appeal, finding that (1) General Accident filed its motion for extension timely within the 180-day period from the February 24, 1999, order, (2) General Accident had intervened in the probate case, (3) General Accident had an interest in the February 24 order, since the probate proceeding concerned the circuit court’s earlier October 28, 1998, order which extinguished the statutory lien General Accident invoked under the Workers’ Compensation Act, (4) the Estate knew General Accident had an interest in the probate court’s February 24 proceeding and order, and (5) no party in the probate proceeding would be prejudiced by granting General Accident an extension to appeal.

During the time General Accident pursued its right of appeal from the February 24 probate court order, the court of appeals, on May 12, 1999, dismissed General Accident’s pending appeal from the circuit court’s October 28, 1998, order because that order was not final. In other words, the court of appeals’ May 12 decision was based on the fact that General Accident’s appeal, filed on November 18, 1998, from the circuit court order of October 28, 1998, was premature, since the probate court’s settlement approval had not yet been rendered when General Accident’s notice of appeal was filed.

However, after General Accident’s appeal from the circuit court’s order was dismissed, it filed on August 16, 1999, a motion with the circuit court to extend General Accident’s time for filing its notice of appeal, asserting that it had 180 days to do so under Civil Appellate Rule 4 — again because General Accident had not been made aware of the probate proceeding or the February 24, 1999, order which approved and finalized the October 28, 1998 order. The circuit court agreed, thus allowing General Accident to file another notice of appeal from the circuit court’s October 28 order, so both the circuit court and probate court appeals would be timely filed and the record and cases consolidated for decision making. The records in the two appeals were lodged with the court of appeals on the same day, November 23, 1999, and the court of appeals consolidated them on January 19, 2000. The court of appeals certified these appeals to us on June 15, 2000, pursuant to Ark. Sup. Ct. R. l-2(b)(l), (2) and (5) (2000).

In its appeal, General Accident asserts that the circuit and probate courts erred when they denied its statutory lien authorized under the workers’ compensation provision Ark. Code Ann. § 11-9-410. Specifically, General Accident argues the circuit court erred by limiting § 11-9-410’s application on the basis of equitable subrogation concepts that require that an insured be “made whole” before an insurer’s statutory lien attaches the recovery. The Estate disagrees with General Accident’s position, but first it raises a procedural point, submitting that the probate and circuit courts did not have authority to extend General Accident’s time to file its notices of appeal. Of course, if the Estate is correct, General Accident’s notices would be untimely and our court would have no jurisdiction to decide General Accident’s appeals. Thus, we first consider the Estate’s dismissal motion.

The Estate argues that General Accident was not entitled to an extension to file notices of appeal under Rule 4(b)(3) because there was no factual basis to justify the probate court’s finding that General Accident was entitled to receive a notice of the probate court’s February 24, 1999, order, since General Accident was not a party to the probate proceeding when that order was entered. The Estate is mistaken. While General Accident had not been formally made a party to the probate proceeding before the February 24 order was entered, it should have been. Obviously, General Accident had a pecuniary interest at stake in the wrongful death action filed in circuit court, and that court extinguished General Accident’s interest. However, the circuit court conditioned its order on the probate court’s approval of the settlement entered into between the Estate and the defendants.

Our general rule is that this court cannot act upon an appeal taken by one not a party to the action below. Rather, relief must be had by way of a collateral attack upon the judgment. See In re: Allen, 304 Ark. 222, 800 S.W.2d 715 (1990). However, there is an equally long recognized exception to the general rule for one pecuniarily affected by the judgment. See id.; McCoy v. Moore, 338 Ark. 740, 1 S.W.3d 11 (1997). As already discussed, General Accident was pecuniarily affected by both the circuit and probate court’s orders; therefore, we do not dismiss General Accident’s appeals.

The Estate also argues General Accident’s appeals were untimely because the circuit and probate courts failed to act on (grant) General Accident’s appeals within 180 days from the entry of their respective orders on October 28, 1998, and February 24, 1998. The Estate misreads appellate rule 4(b)(3), which provides as follows:

Upon a showing of failure to receive notice of the judgment, decree, or order from which appeal is sought and a determination that no party would be prejudiced, the trial court may, upon motion filed with 180 days of entry of the judgment, decree, or order, extend the time for filing the notice of appeal for a period of fourteen (14) days from the date of entry of the extension order. Notice of any such motion shall be given to all other parties in accordance with Rule 5 of the Arkansas Rules of Civil Procedure. (Emphasis added.)

As can be readily seen, it is the motion for an extension that must be filed within 180 days from the order appealed, not the trial court’s order granting the motion. Here, General Accident complied with the rule by moving on May 20, 1999, or 85 days after the February 24, 1999, order, for an extension to file its notice in the probate case and by moving on August 16, 1999, or 173 days after the February 24 order, to file its notice in the circuit court case. Because General Accident filed its extension motions within the 180-day period and thereafter filed its notices of appeal within the required fourteen days from the entry of the trial court’s extension orders, we deny the Estate’s motion to dismiss.

We now turn to the merits of General Accident’s appeals where it argues that its right to a statutory hen on any recovery by the Estate is absolute pursuant to § ll-9-410(a). That provision in relevant part provides as follows:

(a) Liability Unaffected. (1) (A) The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his dependents, to make a claim or maintain an action in court against any third party for the injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in the action.
(B) If they, or either of them, join in the action, they shall be entitled to a first Hen upon two-thirds (2/3) of the net proceeds recovered in the action that remain after the payment of the reasonable costs of collection, for the payment to them of the amount paid and to be paid by them as compensation to the injured employee or his dependents.
(2) The commencement of an action by an employee or his dependents against a third party for damages by reason of an injury to which this chapter is applicable, or the adjustment of any claim, shall not affect the rights of the injured employee or his dependents to recover compensation, but any amount recovered by the injured employee or his dependents from a third party shall be appHed as follows:
(A) Reasonable costs of collection shall be deducted;
(B) Then, in every case, one-third (1/3) of the remainder shall belong to the injured employee or his dependents, as the case may be;
(C) The remainder, or so much as is necessary to discharge the action amount of the liability of the employer and the carrier; and
(D) Any excess shall belong to the injured employee or his dependents.

General Accident argues the foregoing statutory language is clear and unambiguous, and it did everything it was supposed to do by paying David’s survivors the benefits mandated by the Workers’ Compensation Act, intervening in the Estate’s wrongful death action against the defendants, and seeking a first Hen upon two-thirds of the Estate’s net recovery from the defendants. General Accident points out that, despite the mandatory-lien provision, the circuit court erroneously rehed on Franklin v. Healthsource of Arkansas, 328 Ark. 163, 942 S.W.2d 837 (1997), and denied General Accident any Hen right on the Estate’s settlement amount of $18,500.00. In his letter opinion, the circuit judge appeared to base his decision on the foHowing language in Franklin:

An insured’s right to subrogation takes precedent over that of an insurer, so the insured must be wholly compensated before an insurer’s right to subrogation arises; therefore the insurer’s right to subrogation arises only in situations where the recovery by the insured exceeds his or her total amount of damages incurred ....

Franklin, 328 Ark. at 169, 942 S.W.2d at 840.

In keeping with the foregoing language, the circuit court held that the $18,500.00 settlement amount would not make David’s beneficiaries and survivors whole; therefore, General Accident’s lien rights would not be enforced. Accordingly, the circuit court entered its October 28, 1998, order releasing the settlement funds to the Estate, free and clear of any subrogation interest or lien claim by General Accident, upon approval of the probate court.

General Accident urges the circuit court erred in applying the Franklin case to the facts here because the Franklin court weighed the common or equitable law against contractual or conventional subrogation rights of insurers to monies from third parties, and decided in favor of the insureds in a situation where the recovery was insufficient to cover the entire loss. General Accident argues the present situation differs from the one in Franklin, because here, General Accident, as insurer, not only had a contractual right of subrogation, but also an “absolute statutory lien” granted by the General Assembly. In addition, General Accident cites, as controlling, the case of Arkansas Department of Human Services v. Estate of Ferrel, 336 Ark. 297, 984 S.W.2d 807 (1999). It submits that, in Ferrel, the trial court erroneously relied on Franklin, Hke the circuit court here, when it denied the Department of Human Services (“DHS”) its statutory Hen provided under Ark. Code Ann. § 20-77-301 to -313 (Repl. 1991 and Supp. 1999) on a $25,000.00 tort setdement received by a Medicaid recipient; the trial court reasoned that the recipient had not been “made whole.” General Accident argues that in Ferrel, our court reversed the trial court and held the trial court erred in applying the equitable rule to bar DHS’s recovery of monies paid to the Medicaid recipient by a third party because DHS possessed an “absolute” statutory Hen. General Accident submits that, Hke DHS in Ferrel, General Accident’s statutory Hen here, under § 11-9-410, attaches the Estate’s setdement proceeds paid the Estate by third-party defendants. We disagree with General Accident’s argument.

First, we point out that this court premised its decision in Franklin on its holding in Shelter Mutual Insurance Co. v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992), where an insurer sought subrogation in return for its payment to its insured for no-fault medical and wage-loss benefits under Ark. Code Ann. § 23-89-202(1) and (2) (Repl. 1991). As in the instant case, the insurer’s right to subrogation was statutory. Ark. Code Ann. § 23-89-207 (Repl. 1991) provides as follows:

(a) Whenever a recipient of § 23-89-202(1) and (2) benefits recovers in tort for injury, either by settlement or judgment, the insurer paying the benefits has a right of reimbursement and credit out of the tort recovery or settlement, less the cost of collection, as defined.
* * *
(c) The insurer shall have a lien upon the recovery to the extent of its benefit payments.

Although the insurer’s subrogation lien right in Bough was established by the General Assembly, the Bough court held the insurer’s right to subrogation did not arise until the insured was made whole. That same rationale applies to the situation before us now.

Second, while General Accident claims our holding in Ferrel should apply to the present situation, we believe that case involved a set of facts and laws far different from the ones here. In Ferrel, a thirteen-year-old boy had been severely injured in a car accident. His father, who was appointed guardian of the son’s person and estate, applied for Medicaid benefits for him. The father also negotiated a $25,000.00 settlement with the insurer of the driver of the car that hit the boy. The father sought and received the circuit court’s permission to settle the claim. Two months later, DHS filed a claim against the estate, pointing out that when the father filled out the application for Medicaid benefits, he contractually agreed to reimburse the Medicaid program in the event the boy received compensation from third parties for medical costs. The father filed a motion with the probate court, asking for distribution of the setdement money. The probate judge, relying on Franklin, ruled that the boy had not been made whole by the settlement, and therefore, DHS had no right to recover any of the settlement proceeds.

The Ferret court reversed, noting that the facts of the case differed substantially from those in Franklin, and the “made-whole” doctrine did not apply. One significant difference was that DHS was not a private insurance company, but rather “a state agency statutorily charged with the responsibility to administer the federal Medicaid program.” Ferrel, 336 Ark. at 303. Because the federal government dictated that states enact statutes to recover Medicaid funds when a third party was liable, and the state risked losing Medicaid funding if it did not enact such a statute, the court held that the Medicaid statute imposing a lien on any tort recovery controlled over common-law equitable principles of subrogation. In addition, the Medicaid application itself “assign[ed] [the applicant’s] rights to any setdement, judgment, or award obtained from a third party ‘to the full extend of any amount which may be paid by Medicaid for the benefit of the applicant.’ ” Id. at 304 (citing Ark. Code Ann. § 20-77-307 (Repl. 1991 and Supp. 1997)). Furthermore, the Medicaid recoupment statute permitted DHS to recover the full amount it paid to the recipient from setdement proceeds. Id. at 307.

Third, we note that § 11-9-410, on which General Accident relies to support its claim of an “absolute Hen,” does not in all circumstances provide an enforceable lien. For example, in Travelers Ins. Co. v. McCluskey, 252 Ark. 1045, 1052, 483 S.W.2d 179, 183-84 (1972), this court held that § 11-9-410 protects the rights of both the workers’ compensation carrier (insurer) and the employee (insured). The McCluskey court stated that, as between the insurance carrier and insured employee, the proceeds of any compromise setdement of a tort claim are subject to the lien of the carrier unless the setdement has been approved by a court having jurisdiction after the carrier has been afforded adequate opportunity to be heard. Id.; see also Liberty Mutual Ins. v. Billingsley, 256 Ark. 947, 511 S.W.2d 476 (1974); St. Paul Fire & Mar. Ins. v. Wood, 242 Ark. 879, 416 S.W.2d 322 (1967); Wentworth v. Sparks Reg’l Med. Ctr., 58 Ark. App. 242, 950 S.W.2d 221 (1997); New Hampshire Ins. Co. v. Keller, 3 Ark. App. 81; 622 S.W.2d 198 (1981).

As can be discerned from the language in § ll-9-410(c), as interpreted by this court’s decisions in McCluskey and its progeny, the insurer-carrier’s lien right against an insured’s settlement with a third-party defendant is not necessarily “absolute”; rather, the settlement is subject to a court’s approval after the carrier has been afforded adequate opportunity to be heard. In the instant case, the Estate opted to settle and not to prosecute its cause of action to judgment. General Accident not only was an intervening party to the Estates lawsuit against the defendants, but also was afforded a hearing before the circuit court that approved the Estate’s setdement with the defendants. Because General Accident received the notice and hearing to which it was entitled, we conclude that its lien rights were not abrogated.

For the foregoing reasons, we affirm.

       While it is of questionable significance here, there was some argument concerning the possibility that General Accident’s lien rights were extinguished as against the third-party tortfeasors. This issue was neither raised nor ruled on below.


author: TOM GLAZE, Justice.

text:
    Vincent MAXWELL v. STATE of Arkansas
    00-686
    33 S.W.3d 108
    Supreme Court of Arkansas
    Opinion delivered December 14, 2000

      Brockman, Norton & Taylor, by: C. Mac Norton, for appellant.

      Sandra Y. Harris, for appellee.
   TOM GLAZE, Justice.

On February 24, 1994, the Office of Child Support Enforcement Unit (OSCE), on behalf of Jozetta Halton, filed a paternity action against Vincent Maxwell. On June 6, 1995, Maxwell was adjudicated the father of Halton’s child, and he was ordered to pay past and future support payable to Halton. The payments were to be made to the court’s clerk, who in turn would forward payments to OCSE. The record reflects that the court had been notified that Halton had executed a contract with OCSE for non-AFDC assistance and child support enforcement, which provided that all payments collected by the clerk should be forwarded to OCSE. Over five months later, on November 14, 1995, Halton and Maxwell, without notifying OCSE, entered into a joint petition whereby they agreed Maxwell would pay Halton $2,300.00 in satisfaction of all of Maxwell’s past, present, or future child support obligations. The chancery court approved Halton’s and Maxwell’s agreed order on November 15, 1995.

After OCSE learned of the November 15 order, it filed a motion to set the order aside, stating it was never served with a copy of the parties’ joint petition or agreed order. OCSE alleged that (1) Halton had assigned her right to child support to OCSE, (2) Halton and Maxwell could not bargain away their minor child’s right to support, and (3) Maxwell practiced fraud on the court in obtaining the November 15, 1995, agreed order. Besides temporarily abating child support and appointing an ad litem for the child, the chancellor attempted to schedule hearings in the matter, but Halton failed to show for any of them. On February 10, 1998, the chancellor ultimately entered an order finding that, although OCSE was the real party in interest, it had never been properly served with the joint petition or the November 15 order to which Halton had agreed. He found, too, that a continuing relationship existed between OCSE and Halton concerning AFDC benefits. The chancellor further found that Maxwell practiced fraud on the court in obtaining the November 15 order without giving notice to OCSE; therefore, he ruled that he retained continuing jurisdiction over the child’s right to child support until the child obtained majority. Finally, the chancellor concluded that Maxwell must continue his child support payments, that he was in willful violation of the court’s original June 6, 1995, order, and was in arrears in the amount of $3,539.00.

Maxwell filed an appeal from the chancellor’s February 10 order, arguing that the chancellor erred in setting aside the November 15 agreed order because OCSE had no standing to challenge that order. The court of appeals, in a 5-4 decision, agreed with Maxwell and reversed the chancellor. See Maxwell v. State, 70 Ark. App. 249, 16 S.W.3d 293 (2000). In short, the court of appeals held the state had no standing to challenge the validity of the November 15 agreed order because no contract or assignment was shown to exist whereby Flalton had assigned her right to child support to OCSE. The court of appeals also concluded Halton was not an AFDC recipient at the time the agreed order was entered, nor were AFDC arrearages owed at the time. We granted the State’s petition for review of the court of appeals decision. We reverse the court of appeals’ holding and affirm the chancellor’s.

Maxwell spends most of his argument on appeal in an attempt to show that OCSE has no standing to set aside the Maxwell/Halton agreed order because OCSE failed to introduce a contract or assignment showing Halton assigned her right to child support payments to OCSE. However, he ignores Ark. R. Civ. P. 5(b)(3), which provides as follows:

If a final judgment or decree has been entered and the court has continuing jurisdiction, service upon a party by mail shall comply with the requirements of Rule 4(d)(8)(A).

As is recognized in Rule 5(b)(3), there are cases, such as those involving the award of child support, wherein the trial court must continue its jurisdiction over the parties in order to insure the amounts are correcdy established or when arrearages must be enforced. Our case of Office of Child Support Enforcement v. Ragland, 330 Ark. 280, 954 S.W.2d 218 (1997), offers the reader a good understanding as to when and why the court must continue personal jurisdiction over parties in these situations. In Ragland, OCSE filed a “Motion for Judgment” requesting a judgment in the amount of $14,000 for arrearages that had accrued on unpaid child support owed by Jimmy Ragland. OCSE obtained a default judgment in the requested amount. The judgment provided that Ragland’s agent was duly served with a copy of the motion for judgment, and that no response had been filed. Ragland moved to set aside the judgment less than a month after its entry, arguing that it was void for insufficiency of service of process! OCSE responded, contending that its service was valid because it had sent the motion for judgment to Ragland via certified mail, return receipt requested, and had received the “green card” with the signature of Sandy Ragland on the “Signature — Agent” fine. The trial court set aside the default judgment, finding that the service of process had been insufficient under Ark. R. Civ. P. 4(8)(d)(A), because OCSE did not comply with the rule’s requirement that Ragland be served by restricted delivery.

On appeal, OCSE argued that the trial court had continuing personal jurisdiction over Ragland, and thus no new service of process was necessary in order to obtain a valid default judgment. This court agreed, and in reversing, relied on Jones v. Jones, 204 Ark. 654, 163 S.W.2d 528 (1942), a divorce case in which the court recognized that an alimony award should be characterized as a “continuing general decree” that continues to exist until modified by a change in the conditions of the parties. As such, in order to collect on that continuing decree, “it would not be necessary to get personal service upon [the parties involved] to carry out and enforce a continuing decree when an attempt is made to reduce the decree to a definite and certain amount.” Ragland, 330 Ark. at 284 (quoting from Jones, 204 Ark. at 656). Ragland noted cases subsequent to Jones that reinforced the position that the chancery court has continuing personal jurisdiction over the parties to a divorce with respect to certain support or alimony matters. See, e.g., Rice v. Rice, 213 Ark. 981, 214 S.W.2d 235 (1948); Schley v. Dodge, 206 Ark. 1151, 178 S.W.2d 851 (1944).

Ultimately, the Ragland court determined that “Jones and its progeny suggest that an action to reduce past-due arrearages to an executable judgment is not a ‘new’ cause of action, but instead flows from the original . . . decree. As such, personal jurisdiction over the parties continues without the need for additional service of process.” Ragland, 330 Ark. at 285. Likewise, we conclude that a subsequent action to reduce what is otherwise a continuing child-support obligation to a sum certain is not a “new” cause of action, but is instead a cause that “flows from the original decree.”

In the instant case, because OCSE was a party to the original action (having filed the paternity complaint itself), it should have been considered a party to any subsequent proceedings that transpired within the course of the original action. For that reason, OCSE clearly had standing as a party and should have received notice of the filing of the joint petition and the agreed order.

The court of appeals is reversed, and the order of the chancery court is affirmed.

       AFDC is an acronym for Aid to Families with Dependent Children.