text:
    CRYSTAL OIL COMPANY and Nevada Oil Company v. Donald L. WARMACK
    92-1102
    855 S.W.2d 299
    Supreme Court of Arkansas
    Opinion delivered June 7, 1993
    [Rehearing denied July 12, 1993.]

      Smith, Stroud, McClerkin, Dunn & Nutter, by: Hayes C. McClerkin and Barry A. Bryant, for appellant Crystal Oil Co.
      James B. Bennett, for appellant Nevada Oil Co.

      Keith, Clegg & Eckert, by: Oliver M. Clegg and Carolyn J. Clegg, for appellee.
   David Newbern, Justice.

This is an accounting case involving oil and gas leases. The appellee, Donald L. Warmack, sued the appellants, Crystal Oil Company (Crystal) and Nevada Oil Operators (Nevada), claiming he, instead of they, should have been paid royalties on a mineral leasehold. His claim was based on the allegation that the 1963 lease, under which Crystal and Nevada claimed the royalties, had expired because of breach of the implied covenant to develop, thus activating his 1979 “top lease” prior to the payment of the royalties which occurred sometime after 1985.

Crystal and Nevada disputed the allegation that the 1963 lease, which formed the basis of the payments to them, had expired. They also contended Warmack was, because of laches, estoppel, and ratification of the 1963 lease, barred from asserting whatever right he might have. We agree with the Trial Court that the 1963 lease had expired prior to the payment of the royalties and that Warmack’s claim was not barred by laches, estoppel, or ratification.

The 1963 mineral rights lease covered 200 acres. Shortly after the lease was granted, 80 of the 200 acres were placed in a unitized field. We need not recite all the transactions which resulted in Crystal’s and Nevada’s claims. It is enough to say that each of them was an assignee of the 1963 lease, and each reserved an overriding royalty interest when the lease was further assigned. In 1979 Warmack, took a “top lease” from the grantor of the 1963 lease of the 120 acres remaining outside the unit. A “top lease,” according to H. Williams and C. Meyers, Oil and Gas Terms, (7th ed. 1987), p. 1011, is “A lease granted by a landowner during the existence of a recorded mineral lease which is to become effective if and when the existing lease expires or is terminated.”

There was no exploratory or other drilling or testing on the 200 acres by any lessee or leasehold assignee from 1963 until 1985 with the exception that in 1979 Warmack re-entered a well he had drilled in 1955 on the 120 acres. Only minimal production occurred from that well, about a barrel and a half a day.

In 1985, the Tullos Group acquired, by assignment, rights under the 1963 lease as well as under Warmack’s top lease and began exploratory drilling on the 120 acres Warmack had top leased. Royalties were paid to Crystal and Nevada, and in 1989 Warmack asserted his claim to the royalties.

Crystal’s abstract of the record, on which both Crystal and Nevada rely, with minor additions by Nevada, tells us hardly anything about the 1963 lease. All we know from the abstract is that the 1963 lease is an “Oil and Gas Lease,” the names of the parties, and the description of the land covered. Nothing is stated about the terms of the lease, such as its duration or whether there is any provision which would determine the effect of unitization of the 80 acres on the matter of whether there was sufficient development to avoid breach of the implied covenant to develop the remaining 120 acres.

Although it is just barely so, the abstract is sufficient to allow us to consider the issue of the breach of the implied covenant to develop. Absent a provision to the contrary, there is such an implied covenant in any “oil and gas lease.” See Enstar Corp. v. Crystal Oil Co., 294 Ark. 77, 240 S.W.2d 630 (1987), where we quoted the following from Byrd v. Bradham, 280 Ark. 11, 655 S.W.2d 366 (1983):

In oil and gas leases where royalties constitute the chief consideration, an implied covenant exists that the lessee will explore and develop the property with reasonable diligence. (Citation omitted.) The duty to explore extends to the entire tract, and this is especially true where paying quantities of oil have been found on a part of the tract. (Citation omitted.)
Of course, due deference must be given to the judgment of the lessee in determining whether to drill, but the lessee must not act arbitrarily. (Citation omitted.) Furthermore, the lessee must act not only for his own benefit but also for the benefit of the lessor. (Citation omitted.) The lessee’s obligation to explore is a continuing one, even after paying quantities of oil are discovered, in order to effect the purpose of the lease. (Citation omitted.) Production on only a small portion of the leased land does not justify allowing the lessees to hold the entire leasehold indefinitely, thus depriving the lessor of receiving royalties from another arrangement. (Citation omitted.)

Nevada acknowledges the ruling in Byrd v. Bradham, supra, that it was insufficient to explore five acres of an 80-acre tract and thus the leases in that case were canceled. It argues, however, “Here we have a substantial portion of the leased acreage, 80 of 200 acres, continuously producing since they were placed in the Irma Unit in approximately 1964. In Appellant’s view this production and respective royalties paid to lessor held the 1963 lease.” There are two problems with the argument. First, the only inkling we have from the abstract that the 80 acres in the unit were “continuously producing” is a reference by Mr. Corley to the receipt by Nevada of some royalties from the unit. Second, no authority is cited in support of the conclusion that unitization of two-fifths of a leasehold interest is sufficient to hold the remaining three-fifths. We acknowledge Bibler Bros. Timber Corp. v. Tojac Minerals, 281 Ark. 431, 664 S.W.2d 472 (1984), a case not cited by the parties, which seems to support this argument. By way of an obiter dictum we stated:

The general rule is that an oil, gas and mineral lease is indivisible. Production in any part of the lease keeps the lease in effect for as long as oil, gas and other minerals are being produced on any of the lands described in the instrument. The standard lease with a pooling clause provides that the entire lease will be considered held by production, whether that production is on the pooled area or some area of the tract that has not been unitized.

That case, however, in which we went on to describe the “Pugh clause” and its effect, turned on the language of the lease, be it a “standard” or other type. Here we are limited by not having the language of the lease included in the abstract and must consider the effect of the implied covenant to develop the leasehold without the benefit of any lease provisions which might affect it.

We note that Act 380 of 1983 [Ark. Code Ann. § 15-73-201 (a) (1987)] provides that “The term of an oil and gas or oil or gas lease extended by production in quantities in lands in one (1) section or pooling unit in which there is production shall not be extended in lands in sections or pooling units under the lease where there has been no production or exploration.” The statute, while it cannot be applied to a lease entered some 20 years prior to its enactment, makes good sense. If it were not so, a lessee could, as in this case, attempt to tie up the majority of a leasehold by some production or pooling on the minor part.

Of course, in some instances it might make sense to allow it. For example, if the production on one small part of the leasehold is shown to be draining the entire leased area. In that respect this case stands in stark contrast to Stephenson v. Barnes, 288 Ark. 147, 702 S.W.2d 787 (1986), where there was evidence presented by the lessee that he had drilled several wells and obtained geological data showing that further drilling elsewhere on the leasehold would be harmful to the production he was eking out on the small area he had explored. We wrote:

Here, by contrast, the lessee of 120 acres has drilled five wells in the most promising part of the lease, with good production from two of them, and has shown why he would be unduly harmed by cancellation. He has also developed the leasehold systematically and proceeded in every direction as far as is reasonably practical. We are convinced that his actions have complied with the implied covenant to develop the leasehold at the Nacatoch level.

There is no similar evidence in this case; no showing that any exploration whatever occurred prior to 1985. Crystal and Nevada presented two witnesses, one of whom, Mr. Corley, is affiliated with Nevada and the other, Mr. Wright, is the Director of the Arkansas Oil and Gas Commission. Both testified essentially, but without saying specifically why, that the exploration done in and after 1985 by the Tullos Group was not “prudent,” the implication being that there was no breach of the implied covenant to develop the land because it would have been “imprudent” for the 1963 lessees and their successors to have developed the leasehold.

Mr. Corley testified that he had no intention of drilling on the 120 acre tract as he had better places to drill. Surely such a lessee may not tie forever the hands of the owner. The 22 years of inactivity on the 120 acre tract violated the implied covenant to develop, and the chancellor was correct to regard the 1963 lease as a nullity.

2. Laches, estoppel, and ratification

Crystal and Nevada assert that Warmack is barred by laches, estoppel, and ratification because (1) he took no action to develop the 120 acres until 1985 when he farmed his interest out to the Tullos Group, (2) he signed a 1985 division order acknowledging the interests of Crystal and Nevada, and (3) he accepted an interest in the 1963 lease when he entered negotiations with some parties claiming interests under the 1963 lease and accepted those interests as consideration for settlement of a dispute.

We have no quarrel with the citation of Pope v. Pennzoil Producing Co., 288 Ark. 10, 701 S.W.2d 366 (1986), for the proposition that oil and gas properties are unusual and require diligence on the part of interested parties. Laches, however, requires a showing of some sort that the party asserting the doctrine has suffered or changed its position as a result of the lack of diligence or delay in assertion of rights. Gordon v. Wellman, 265 Ark. 914, 582 S.W.2d 22 (1979). The same is true of estoppel; there must be some showing of reliance. Hope Education Ass’n v. Hope School Dist., 310 Ark. 768, 839 S.W.2d 526 (1992). There was no showing of reliance or change of position by Crystal or Nevada.

We agree with Warmack’s position that he clearly is not claiming under the 1963 lease, but under his 1979 top lease. Thus, he is not, as Crystal and Nevada would have us conclude, placing any reliance on the 1963 lease, in which he may have accepted an interest in a settlement.

We cannot consider the argument about the division order allegedly signed by Warmack as it does not appear in the abstract. Not all division orders are alike, see, Anadarko Petroleum Co. v. Venable, 312 Ark. 330, 850 S.W.2d 302 (1993), and Pope v. Pennzoil Producing Co, supra, and we have no idea, based on the record in this case, what was contained in the one alluded to here.

This case has been very difficult for every member of the Court to understand. Not only is the appellant’s abstract almost fatally deficient, but a good deal of extrapolation on our part was required to understand the arguments enough to perceive the merits of this case. While we recognize that it is impossible to avoid some usage of legal jargon, we take this opportunity to ask and suggest that, particularly in specialized cases such as those dealing with oil and gas and mineral rights, members of the bar attempt to avoid legal jargon where regular words would do. We also hope cryptic argument in these cases may become a thing of the past and that more care will be taken to explain and to present the record by abstract in a more complete manner.

Affirmed.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Olaf DAVIS v. BAXTER COUNTY REGIONAL HOSPITAL
    92-1157
    855 S.W.2d 303
    Supreme Court of Arkansas
    Opinion delivered June 7, 1993

      The Law Offices of Christopher O’Hara Carter, by: Christopher O’Hara Carter, for appellant.

      Marshall & Owens, P.A., by: W. Lance Owens, for appellee.
   Tom Glaze, Justice.

Based upon the doctrine of necessaries, the Baxter County Regional Hospital initiated this lawsuit against Olaf Davis, seeking payment of $3,443.27 for medical services provided Davis’s wife, Daleca. Mr. Davis answered, denying any responsibility for any indebtedness to the Hospital, and in addition, filed a cross complaint against Daleca, asserting that, under the Davis’s divorce decree, Daleca agreed to pay all services provided her by the Hospital and to hold Mr. Davis harmless against any such indebtedness. Daleca failed to file an answer or appear in the trial court proceedings. At trial, the Hospital and Mr. Davis agreed that the medical treatment and services provided Daleca occurred during the Davis’s marriage and that Daleca alone signed the Hospital’s required admission forms. The parties further stipulated that Mr. Davis had never agreed to be responsible for Daleca’s medical bills. On these facts, the trial court held that, under the common law doctrine of necessaries, Mr. Davis was liable for Daleca’s indebtedness to the Hospital. It further awarded a default judgment to Mr. Davis against Daleca based upon the allegations contained in Davis’s cross-complaint. Mr. Davis appeals from the Hospital’s judgment and argiies the common law doctrine of necessaries is (1) archaic and violative of public policy, (2) contrary to basic principles of contract law and (3) in conflict with the legislative intent expressed in Ark. Code Ann. §§ 9-11-502 through 508 (1987), which among other things removed the disabilities of married women.

The necessaries doctrine and its related principles have been stated as follows:

Apart from the contractual liability of a husband for goods and services which are within the classification of necessaries, under certain conditions he is rendered liable by law when such goods and services are furnished his wife. A husband is liable for necessaries furnished his wife where they are furnished her when he is derelict in his duty to support her, whether his dereliction lies in his refusal or in his neglect; and although he has a primary right, so long as he acts reasonably, to determine what are necessaries for her and to dictate the source from which they shall be procured and the manner in which they shall be purchased, he may be held liable for an article or service furnished her which is one of that class of items of goods or services with which he normally is required to provide her, as well as for an article or service, such as medical services, with which he is bound to provide her under particular circumstances, irrespective of the fact that he supports her generally, unless the article or service is furnished on her credit alone. Sometimes the rule is merely stated that he is liable for necessaries furnished her, but such a statement of the rule leaves open the question of when and under what circumstances goods or services furnished her are necessaries, and fails to indicate the effect of an extension of credit exclusively to the wive. . .The burden of proof of the facts requisite to establish the liability of a husband for necessaries rests upon the party who asserts such liability. Whether or not the husband has made a suitable provision for the wife in reference to her support is a question for the jury, under all the facts and circumstances.

26 Am.Jur., Husband and Wife § 355 (1940), now 41 Am.Jur.2d, Husband and Wife § 348 (1968); Ark. State Hospitals. Kestle, 236 Ark. 5 (footnote 4 at pp. 9-10), 364 S.W.2d 804 (footnote 4 at pp. 807) (1963).

The above rule on necessaries is subject to the general rule, both at common law and under statutes enabling a married woman to contract, that if credit for necessaries, goods, or services furnished the wife is extended exclusively to her, her husband ordinarily is not liable for them. 41 Am.Jur.2d, Husband and Wife § 383 (1968). In other terms, the purchase of necessaries by a wife who has the capacity to contract and makes purchases on her own credit casts no liability on the husband where she neither has nor discloses any intent to purchase on his credit and the seller has no intent to give credit to anyone other than the wife. Id.

Finally, it is important to note that there is a presumption that necessaries obtained by a married woman while living with her husband were not obtained on her exclusive credit, so as to relieve her husband of liability, if it appears the seller knew that the woman was a married woman, and the goods were not of a character indicating that they were bought for other than family use, but the presumption is rebuttable by evidence of facts inconsistent with it. 41 Am.Jur.2d, Husband and Wife § 385 (1968).

The common law necessaries doctrine is the law in Arkansas and will remain law so long as the doctrine is consistent with the Constitution and the laws of the United States or the Constitution and laws of this state and shall be the rule of decision in this state unless altered or repealed by the General Assembly. See Ark. Code Ann. § 1-2-119 (1987). Recently, consistent with the dictates in § 1-2-119, we indicated that the General Assembly, not the judiciary, is the appropriate body to modify or supersede the doctrine. Medlock v. Fort Smith, 304 Ark. 652, 803 S.W.2d 930 (1991); see also Shands Teaching Hosp. and Clinics v. Smith, 497 So.2d 644 (Fla. 1986); Waite v. Leesburg Reg. Medical Center, 582 So.2d 789 (Fla. App. 5 Dist.) (1991). In fact, we have recognized the viability of the necessaries doctrine on a number of occasions. Medlock, 304 Ark. 652, 803 S.W.2d 930; Ark. State Hospital, 236 Ark. 5, 364 S.W.2d 804; Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961); Beverly v. Nance, 145 Ark. 589, 224 S.W. 956 (1920); see also and Cf. cases in 20 ALR4th 196, Wife’s Necessaries (1983 and Supp. 1992).

First, we reject Davis’s suggestion that Arkansas’s statutory provisions §§ 9-11-502 — 508 have superseded the wife’s necessaries doctrine. “It has been held that the liability of a husband for necessaries furnished his wife is not generally affected by the fact that the Married Woman’s Act(s) preserve to married women their separate estates, enable them to contract, and otherwise remove their common-law disabilities of coverture and make them solely responsible for their own liabilities, because the liability of the husband arises primarily from the marital relationship, and not from the fact that at common law he was entitled to all his wife’s personalty and the usufruct of her realty.” 41 Am.Jur. Husband and Wife § 348 (1968); 20 ALR4th § 2(a); see also Medical Business Associates v. Steiner, 588 N.Y.S.2d 890 (A.D.2d Dept. 1992). Consistent with the foregoing rule, this court specifically held that § 9-11-508, one of Arkansas’s statutory provisions dealing with the rights of married persons, had not changed the wife’s necessary doctrine because that provision only exempts the husband from liability for debts of the wife in relation to her separate property or trade and business carried on by her. Beverly, 145 Ark. 589, 224 S.W.2d 956 (1920). Other provisions, such as §§ 9-11-506 and 507, in no way affect the doctrine because they concern property owned by a spouse prior to marriage and by their terms have nothing to do with debts incurred by a spouse during the marriage.

For the foregoing reasons, we reject Davis’s suggestion to declare the doctrine of necessaries violative of public policy or contrary to Arkansas’s statutory laws that remove disabilities of married women and pertain to their rights to contract, to sue and be sued and to acquire, sell or hold their separate property.

In conclusion, we note that Mr. Davis does not argue for reversal that the necessaries doctrine violates the Equal Protection Clause. Nor does he urge that, assuming the doctrine’s continued viability, the Hospital failed to meet its burden to show Mr. Davis’s liability under the doctrine. Thus, we affirm the trial court’s decision in all respects.

       The Steiner court also held the necessaries doctrine violated the Equal Protection Clause, but in doing so, it expanded the doctrine’s application to both spouses rather than to abolish the doctrine altogether. 588 N.Y.S.2d at pp. 893-896.

       The Beverly opinion cites to section 5215 of Kirby’s Digest which reads identical to present codification of § 9-11-508.


author: Donald L. Corbin, Justice. Robert L. Brown, Justice,

text:
    George HANKINS v. Larry McELROY, Individually, and d/b/a Mac’s Auto Sales; and Lawyers Surety Corporation
    92-1376
    855 S.W.2d 310
    Supreme Court of Arkansas
    Opinion delivered June 7, 1993
    [Rehearing denied July 5, 1993.]

      Diana M. Moulding, for appellant.

      Taylor & Montgomery, by: Joel Taylor, for appellees.
   Donald L. Corbin, Justice.

Appellant, George Hankins, appeals a judgment of the Pulaski Circuit Court, declaring that appellee, Lawyers Surety Corporation, is not liable on a bond it issued in favor of its principal, Larry McElroy d/b/a Mac’s Auto Sales. We find error in the trial court’s judgment and reverse.

Appellant and McElroy are used car dealers licensed in accordance with the Arkansas Motor Vehicle Commission Act, Ark. Code Ann. §§ 23-112-101 et. seq. (Repl. 1992). Appellant engaged in several business transactions with McElroy which are the subject of this case. Appellee Lawyers Surety Corporation (Lawyers) is the surety which issued a penal bond, naming McElroy as principal, in compliance with the motor vehicle dealer licensing statutes. See Ark. Code Ann. § 23-112-603 (Repl. 1992).

Appellant filed suit against McElroy alleging various allegations of fraud, conversion, and breach of contract relating to certain notes receivable as well as to the sales of a Camaro and a GMC truck. Appellant’s complaint also included appellee Lawyers as a defendant and sought declaratory relief for payment under the bond Lawyers issued with McElroy as principal. Relying on Ark. Code Ann. § 23-112-302 (Repl. 1992), appellant claimed he was entitled to payment under the bond because McElroy’s actions were sufficient to warrant the suspension or revocation of McElroy’s car dealer’s license. Lawyers’ answer admitted liability under the bond for the $2,115.00 in damages arising from the sales of the Camaro and the GMC truck.

Appellant obtained a default judgment against McElroy for a total amount of $25,869.00, which includes $23,754.00 on the claims relating to the notes receivable, $ 1,000.00 on the claim for the Camaro, and $ 1,115.00 on the claim for the GMC truck. The default judgment also included court costs of $101.00 and an attorney’s fee of $350.00. The judgment, costs, and fees were to bear 6 % interest. The trial court disposed of appellant’s request for declaratory relief in an order entered separate from the default judgment. That order declared that the bond could not be used to satisfy appellant’s judgment. This appeal followed.

Appellant makes five arguments for reversal of the judgment. We do not reach the merits of the arguments. We must reverse and dismiss because appellant has not exhausted his administrative remedies. Arkansas Motor Vehicle Comm’n v. Cantrell Marine, Inc., 305 Ark. 449, 808 S.W.2d 765 (1991).

After July 1,1989, all regulatory authority of dealers of used motor vehicles was transferred from the Arkansas Motor Vehicle Commission to the Revenue Division of the Department of Finance and Administration (DF&A). Ark. Code Ann. § 23-112-601 (Repl. 1992). The Reporter’s Notes to section 23-112-601 indicate that all bonds posted by presently licensed used motor vehicle dealers were transferred from the Motor Vehicle Commission to the Revenue Division of DF &A, to be regulated in accordance with section 23-112-603. Thus, it is the licensing and bonding requirements of section 23-112-603 that are applicable to this case.

Section 23-112-603 provides that an applicant for license as a motor vehicle dealer in used vehicles must file a corporate surety bond in the penal sum of $25,000.00, payable to the State of Arkansas as an indemnity for any loss sustained by any person by reason of the acts of the bonded person when such acts constitute grounds for the suspension or revocation of his license. Section 23-112-603 further provides that:

[t]he proceeds of the bond shall be paid upon receipt by the Director of the Department of Finance and Administration of a final judgment from an Arkansas court of competent jurisdiction against the principal and in favor of an aggrieved party.

Appellant has obtained a default judgment in his favor against McElroy. Thus, the quoted portion of section 23-112-603 provides him with an administrative remedy for seeking payment under the bond — presentment of the default judgment to the Director of DF&A.

The record does not reveal that appellant availed himself of this administrative remedy. Instead of presenting his judgment to the Director of DF & A, appellant sought declaratory relief in the circuit court. It is well established that litigants must exhaust their administrative remedies prior to seeking a declaratory judgment because declaratory judgment actions are intended to supplement rather than replace ordinary causes of action. Rehab Hosp. Serv. Corp. v. Delta-Hills Health Sys. Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985). Moreover, a basic rule of administrative procedure requires that an agency be given the opportunity to address a question before resorting to the courts. See Truck Transp. Inc. v. Miller Transporters, Inc., 285 Ark. 172, 685 S.W.2d 798 (1985). There is no doubt that seeking payment under the bond of a licensed dealer of used motor vehicles falls within the jurisdiction of DF&A. Section 23-112-603. Therefore, appellant should have availed himself of this administrative remedy and given DF&A an opportunity to address the issue presented to the circuit court for declaratory judgment. Clearly, this is the procedure the legislature intended to be followed when it delegated regulatory jurisdiction of used motor vehicle dealers to DF&A in Ark. Code Ann. §§ 23-112-601 to -604 (Repl. 1992).

We are mindful of the exceptions to the exhaustion of remedies doctrine as restated in Cantrell Marine, 305 Ark. 449, 808 S.W.2d 765. There, this court noted that the exhaustion doctrine does not apply when it would be futile to pursue an administrative remedy or where there was no genuine opportunity to do so. As was the case in Cantrell Marine, we cannot say that either exception applies because the record does not indicate that appellant ever even attempted to pursue any administrative action. Here, there is no indication in the record that appellant ever presented the default judgment to DF&A and sought payment under the bond. Had DF&A denied appellant’s request for payment under the bond, appellant could then have sought review of DF&A’s actions by seeking judicial review in Pulaski County where state agencies are subject to suit pursuant to Ark. Code Ann. § 16-60-103 See Sikes v. General Publishing Co., 264 Ark. 1, 568 S.W.2d 33 (1978). Therefore, we cannot say there was no opportunity for appellant to seek his administrative remedy or that it would have been futile to do so.

Accordingly, we hold appellant failed to exhaust his administrative remedies. We reverse and dismiss the judgment without prejudice to allow appellant to seek his administrative remedy before DF&A. Cantrell Marine, 305 Ark. 449, 808 S.W.2d 765.

Reversed and dismissed.

Holt, C.J., Newbern and Brown, JJ., dissent.

Robert L. Brown, Justice,

dissenting. I disagree that the appellant, George Hankins, has failed to exhaust an administrative remedy and would reach the merits.

The remedy referred to by the majority is found in a single sentence at the end of a section on license requirements:

The proceeds of the bond shall be paid upon receipt by the Director of the Department of Finance and Administration of a final judgment from an Arkansas court of competent jurisdiction against the principal and in favor of an aggrieved party.

Ark. Code Ann. § 23-112-603 (Repl. 1992).

I have serious doubts that this one sentence is intended to provide an administrative remedy. For one thing, the sentence is unclear. Is the Director of DFA to conduct a hearing on the legitimacy of the payment or simply perform a ministerial act of noting the bond claim? The statute is vague on this point, all of which begs the question: What is the remedy that Hankins should have availed himself of?

The majority raises the administrative remedy point on its own. Neither party did so in their briefs. Indeed, at oral argument, both parties deemphasized the importance of DFA’s role. Counsel for Hankins said the judgment was sent to DFA, though she admitted that this action was not part of the record. More importantly, though, counsel for Lawyers Surety Corporation admitted that DFA had adopted no rules defining its role related to bond payments and that, moreover, his experience with DFA in these proceedings is that it viewed itself merely as a “conduit.” The circuit court, in its findings, also noted that no DFA rule had been presented to him.

In sum, not only is the statute unclear as to DFA’s role, but DFA itself, according to counsel for the surety, does not view its function as remedial.

The majority relies on Arkansas Motor Vehicle Comm’n v. Cantrell Marine, Inc., 305 Ark. 449, 808 S.W.2d 765 (1991), but that case is distinguishable. There, Cantrell Marine was denied a motor vehicle dealer license by the Motor Vehicle Commission. It failed to pursue its clear administrative remedies before the Commission, and we held that lapse to be fatal to an appeal.

In the case at bar, however, whether an administrative remedy exists is questionable, DFA has promulgated no rules establishing procedures for pursuit of a remedy, and DFA views its role as a “conduit” in such matters. Not only would it have been futile for Hankins to request an administrative remedy from DFA, one apparently did not exist. This was a non-issue to the parties, and I disagree that the case should turn on this point.

I respectfully dissent.

Holt, C.J., and Newbern, J., join.


author: Donald L. Corbin, Justice.

text:
    John TARKINGTON v. STATE of Arkansas
    CR 92-1134
    855 S.W.2d 306
    Supreme Court of Arkansas
    Opinion delivered June 7, 1993

      John Wesley Hall, Jr., P.C., by: Craig Lambert, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, John Tarkington, was convicted of aggravated robbery and sentenced as a habitual offender to life in prison. On appeal he argues the trial court erred by not instructing the jury on the lesser included offenses of robbery and aggravated assault. He also argues the trial court erred in denying his two motions for a mistrial.

On February 23, 1991, about 10:30 p.m., Johnna Morley closed her store, Country Convenience Store. She got into her mini-van and began to drive away, but stopped under a nearby floodlight because she saw a black Camaro, which was parked next door and which had driven by the store earlier, start its engine and turn on its lights when she drove past. Ms. Morley testified she wanted to see if the Camaro was going to her store because her door had recently been smashed. When Ms. Morley stopped under the floodlight and turned to look at her store, appellant jumped up from the seat behind her and held a knife to her throat. Ms. Morley described the knife as a hunting knife with a 3.5 to 4-inch blade and a shiny, bright orange handle. Appellant demanded money, but Ms. Morley did not have any with her. Appellant then ordered Ms. Morley to return to the store, where he continued to hold the knife to her throat as they got out of the van and entered the store. Appellant continued to hold the knife on Ms. Morley while he had her open the store safe and put the money bags on the floor. Appellant took the money bags and put them in a grocery bag, he then took Ms. Morley into the office and told her not to call the police and left. Ms. Morley called the police and told them what had happened. The police began to look for a dark Camaro. Shortly thereafter, a black Camaro in which appellant was a passenger was spotted by the police. As the police attempted to stop the car, appellant threw the money bags taken from the convenience store out of the car window. When the car did stop, appellant was taken out of the car. During a pat down search, a knife was found in and removed from appellant’s pocket. Ms. Morley identified the knife as the one used in the robbery.

Appellant testified on his own behalf at trial. His testimony was that he had taken some Xanax and drunk beer on the day of the robbery and did not recall anything that happened that night until his car, in which he was a passenger at the time, was stopped by the police. He also testified that he had owned the knife in question at one time, but had given it to his son who had left it in the car. He testified that he did not normally carry a knife and had not been carrying the knife that evening, but later said he could not contradict what any of the other witnesses had said because he could not remember and that the knife wasn’t in his pocket that he knew of.

We first address appellant’s arguments regarding the trial court’s refusal to instruct the jury on the lesser included offenses of robbery and aggravated assault. A person commits robbery when “with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.” Ark. Code Ann. § 5-12-102(a) (Supp. 1991). A person commits aggravated robbery when he commits robbery and “[i]s armed with a deadly, weapon or represents by word or conduct that he is so armed; or [ijnflicts or attempts to inflict death or serious physical injury upon another person.” Ark. Code Ann. § 5-12-103(a) (1987). A person commits aggravated assault when “under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person.” Ark. Code Ann. § 5-13-204(a) (1987).

At trial, the victim testified that appellant held a knife on her and forced her to open the safe at the convenience store where she worked and hand him the money from inside. Officer Hardy testified that the knife was removed from appellant’s pocket by Officer Lopez after the car he was in was stopped. Appellant testified on his own behalf at trial. However, he offered no proof to contradict the state’s case. Appellant’s testimony was essentially that he did not remember anything about the time period in question and that he could not dispute what the witnesses against him said.

Given that there was no proof presented that appellant did not have a weapon during the robbery, it was not error for the trial court to refuse to instruct on the lesser included offenses of robbery and aggravated assault. Smith v. State, 277 Ark. 403, 642 S.W.2d 299 (1982). “The trial court is not obligated to charge the jury with respect to a lesser included offense when there is no rational basis for the jury to find appellant guilty of a lesser included offense.” (Citations omitted.) Id. at 405, 642 S.W.2d at 301; Ark. Code Ann. § 5-1-110(c) (1987). .

For his second point on appeal, appellant contends the trial court erred when it denied his two motions for a mistrial. Appellant contends two statements made by Officer John Surrette and Investigator James Hardy during their testimony were improper comments on appellant’s silence and amount to Doyle violations which require our reversal. Doyle v. Ohio, 426 U.S. 610 (1976). In Doyle, the United States Supreme Court held that “the Due Process Clause bars ‘the use for impeachment purposes’ of a defendant’s postarrest silence.” Greer v. Miller, 483 U.S. 756, 763 (1987).

The first comment to which appellant asked for a mistrial occurred during the following questioning of Officer John Surrette by the prosecutor:

Prosecutor: And, you were — you were involved in the transportation of Mr. Tarkington to the Pope County Detention Center?
Officer Surrette: Yes, I was.
Prosecutor: All right. And, did you transport him in your patrol car?
Officer Surrette: Yes, I did.
Prosecutor: Was there any incident or anything unusual that happened on the way or was it routine?
Officer Surrette: Just routine. He didn’t make any statements to me whatsoever.
Defense Counsel: Your Honor, may we approach the Bench?
The Court: Yes, sir.
(Side-Bar Conference, outside the hearing of the Jury)
Defense Counsel: Your Honor, it is his absolute right not to make any statements. That’s — I move for a mistrial. You know, he’s — you’re not suppose to be bringing that out that he didn’t make statements. That carries the implication that he’s — he’s doing something wrong by not making statements.
Prosecutor: He’s just saying he didn’t say anything is all he said.
The Court: Well, I’m not going to grant a mistrial; but—
Prosecutor: He just came out with it. I just asked him if there was anything unusual or if it was fairly routine.
The Court: The response wasn’t really responsive to his question.
Defense Counsel: I would ask you to caution the Jury that—
The Court: Well, I’d rather not draw attention to it.
Prosecutor: That would be the same effect as if he said he had sit [sic] in silence.
Defense Counsel: Well, it’s his right to remain silent.
Prosecutor: Well, nobody disputes that. That’s just part of the fact.
Defense Counsel: All right.
(End of Side-Bar)

This is similar to what occurred in McIntosh v. State, 296 Ark. 167, 753 S.W.2d 273 (1988), cert. denied, 489 U.S. 1065 (1989). In McIntosh, we held no Doyle violation occurred when a police officer included as part of his answer to the prosecutor’s questions about his interview of appellants that “all three made no comment.” In doing so, we relied on Greer v. Miller, 483 U.S. 756 (1987) in which the United States Supreme Court found no Doyle violation occurred when a prosecutor asked appellant on cross-examination why he didn’t tell his story about the events surrounding a murder when he was arrested since the trial court sustained an objection to the question, the jury was instructed to ignore the question, and the prosecutor did not pursue the issue further or mention it during his closing argument. In McIntosh , we stated as follows:

The error in the present case is even less apparent than the one made in Greer. Here it was not the prosecutor who referred to the appellants’ silence but a police officer who gave an unsolicited response. The trial judge did not allow nor did the prosecutor attempt to use the appellants’ silence for impeachment purposes or call attention to their silence.

McIntosh, 296 Ark. at 173, 753 S.W.2d at 276 (citation omitted). The same situation occurred in this case. There was not a comment or question by the prosecutor regarding appellant’s postarrest silence. There was merely an inadvertent comment by a witness which was nonresponsive to the prosecutor’s question. Additionally, the prosecutor did not comment on appellant’s postarrest silence in his argument to the jury. As such, this statement does not amount to a Doyle violation. Greer, 483 U.S. 756.

The second incident which appellant contends was an improper comment on his silence occurred during the questioning of Investigator Hardy by appellant’s counsel. The following occurred:

Defense Counsel: Okay. Now, had you seen [appellant] the night that this crime occurred?
Investigator Hardy: Yes, sir. I attempted to interview him.
Defense Counsel: Your Honor, may we approach the Bench?
The Court: Yes, sir.
(Side-Bar Conference, outside the hearing of the Jury)
Defense Counsel: I again — the same thing that came up yesterday; and I move for a mistrial again. He’s got the right to remain silent.
The Court: He’s not commenting on his right.
Defense Counsel: He said he attempted to interview him.
Prosecutor: He just responded to his question.
Defense Counsel: Well, I didn’t ask him if he interviewed him. I asked him if he saw him.
Prosecutor: He was answering your question that you asked.
The Court: It was responsive. It may not have been the answer you wanted to hear; but it was responsive.
Defense Counsel: Well, I move for a mistrial.
The Court: I’ll deny that.
Defense Counsel: Okay; and I’ll ask for a cautionary instruction that he has the right to remain silent.
Prosecutor: I don’t believe that would be called for.
The Court: Well, I don’t think he started a questioning and answering session with [appellant].
Defense Counsel: He said he attempted to interview him.
Prosecutor: He didn’t say whether he gave the statement or did not.
Defense Counsel: Well, I think there’s enough there to create an implication against my client that he did something wrong by not cooperating with him.
Prosecutor: He didn’t say he—
Defense Counsel: He said he attempted to interview him.
The Court: Well, I can tell the Jury that a person accused has a constitutional right not to give a statement. He has the right to remain silent.
Defense Counsel: I ask for that. I think I have to; but I first ask for a mistrial.
The Court: I’ve denied that; but if you wish to have a cautionary instruction, I’ll do that.
Defense Counsel: Yes, sir. Okay.
(End of Side-Bar)
The Court: Ladies and Gentlemen, Mr. Hardy had indicated that — I believe in response to a question that he attempted to interview [appellant]. An accused has a constitutional right not to testify. In other words, he can remain silent. The fact that a person exercises that right is not to be considered by you in determining his guilt or innocence in this case.

Once again, this was not questioning or comments by the prosecutor on a defendant’s silence which would constitute a Doyle violation. Greer, 483 U.S. 756. The statement objected to occurred during cross-examination by appellant’s own counsel. In addition, the jury was instructed as appellant requested that an accused has the right to remain silent and that the exercise of this right should not be used in determining guilt or innocence.

As required by Ark. Sup. Ct. R. 4-3(h), we have reviewed all abstracted rulings adverse to appellant as well as the points raised on appeal. We find no error.

Affirmed.


author: Robert L. Brown, Justice.

text:
    Ronnie HAYNES v. STATE of Arkansas
    CR 93-58
    855 S.W.2d 313
    Supreme Court of Arkansas
    Opinion delivered June 7, 1993

      William R. Simpson, Jr., Public Defender, by: Kent C. Krause, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Ronnie Haynes was convicted of aggravated robbery, sexual abuse, and misdemeanor theft. He was sentenced as a habitual offender to 40 years for the robbery and 10 years for sexual abuse, with the two sentences to run concurrently. A six-month sentence in the Pulaski County Jail for misdemeanor theft was merged into the felony convictions. He appeals on one ground — the trial court’s disallowance of the testimony of a defense witness who was a police officer and who was known to the State. We affirm the convictions and sentences.

The criminal charges arose out of an incident in Little Rock which occurred at a video store at about 1:00 p.m. on April 30, 1991. According to the victim, age 20, who worked at the store as a clerk, Haynes entered the business on two occasions and looked around. His total time in the store was 30 to 45 minutes. He then pulled a gun, took money from the cash register, and forced the victim into the men’s bathroom where he ordered her to remove most of her clothing and lie on the floor. He lay on top of her and simulated sex and fondled her breasts, though he did not rape her. He left her after a few minutes but told her to remain in the bathroom. After the assault, a friend from the business next door came into the video store, discovered the victim, and called the Little Rock Police Department.

At the trial, the victim was questioned on cross examination about whether she told the first investigating police officer about what transpired in the men’s bathroom. She responded that she told the police officer her full story but did not know if he recorded the incident in the bathroom or not. Haynes argued his own case in closing argument and attempted to refer to the absence of a police record concerning the bathroom assault, but the State objected on grounds that the officer’s report was not in evidence. The trial court sustained the objection. Haynes was then convicted and sentenced.

The essence of Haynes’s argument on appeal is that the trial court erred at the beginning of the trial in disallowing the testimony of the police officer who first interviewed the victim. The court’s disallowance, according to Haynes, was premised on the failure of the defense to provide the witness’s name to the State as required by Ark. R. Crim. P. 18.3. Haynes argues that the State already had the name of the police officer and his report in its file and, thus, the State could not have been surprised or prejudiced by this witness. The State counters on appeal, however, that regardless of the merits of this argument, the issue was not preserved for our review because Haynes failed to make a proffer of the actual police report at trial or to proffer what was contained in the report.

We affirm the convictions and sentences but not for the reasons offered by the State. Haynes failed to abstract any of the hearing that occurred at the beginning of the trial surrounding whether the first investigating officer was a proper witness. Nor are the discussions which occurred at the hearing quoted in the argument portion of the briefs. We, as a consequence, are uninformed about what motion or objection was made by the State relative to this testimony, the response by the defense, and the ruling by the court. There is a reference in the abstract to Haynes’s closing argument and his attempted allusion to the officer’s report. But the essential colloquy involving the trial court and counsel for the parties which transpired at the inception of the trial and which pertained to this witness is lacking.

Our rule is clear on this point and has been for decades. Without proper abstracting, seven justices would be constrained to pore through the sole record of the case on file with the Clerk of the Supreme Court in search of the error propounded by the defense. We have said repeatedly, and our rule so states, that we will not go to the record in research of prejudicial error. See Ark. Sup. Ct. R. 4-3(h), formerly Ark. Sup. Ct. R. 11(f). While the result may appear harsh, we have no other mechanism to protect against egregious violations of the rule except to affirm in instances like this.

In sum, we simply do not have an abstract of the pivotal hearing before us necessary to decide the issue presented. When an abstract’s deficiencies are so flagrant that a decision is well nigh impossible, we will affirm. Ark. Sup. Ct. R. 4-2(a)(6), formerly Rule 9; see also Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993); D.J. v. State, 308 Ark. 37, 821 S.W.2d 782 (1992); Harrison v. State, 300 Ark. 439, 779 S.W.2d 536 (1989); Roberts v. State, 288 Ark. 640, 707 S.W.2d 324 (1986) (per curiam). Such is the situation in the case before us.

Affirmed.


author: Per Curiam.

text:
    Frances WATSON v. STATE of Arkansas
    CR 93-536
    856 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered June 7, 1993

      Reginald S. McCullough, for appellant.
    No response.
   Per Curiam.

The appellant, Frances Watson, petitions the court for a rule on the clerk. The clerk refused to file her record because her notice of appeal was filed before the judgment in her case was entered. We hold that the clerk was correct in refusing the record and deny the motion for rule on the clerk.

Watson was convicted of the first degree battery of a child in her care, seven year old Daniel Toric, on October 29, 1992, and sentenced to thirty years imprisonment. Notice of appeal was filed that same day, but the original judgment was not filed until November 3,1992. An amended judgment was thereafter filed on November 13, 1992. Watson’s counsel attempted to file the transcript with this court on April 22, 1993, but the Clerk correctly refused to lodge the transcript with this Court.

Watson’s counsel claims that he was never mailed a copy of the judgment in this matter. He explains that since Pulaski County does not mail or transmit a copy of the judgment to the defendant or counsel, he has made it his practice to file a notice of appeal in Pulaski County within thirty days from the date of trial. In this case, however, he filed the notice of appeal on the same day as the conviction but before the judgment was entered. This premature filing of the notice of appeal renders it ineffective.

Arkansas Rules of Appellate Procedure 4(a) provides in pertinent part that a notice of appeal shall be filed within thirty days from the entry of judgment. Tucker v. State, 311 Ark. 446, 844 S.W.2d 335 (1993). As a result, Watson’s notice of appeal was both untimely and unacceptable for purposes of appeal. This court In Re: Belated Appeals in Criminal Cases, 265 Ark. 964, (1979) issued a per curiam with reference to belated appeals stating that when counsel had miscalculated the time limits for filing the record in this court, we would permit the case to be docketed for the reason that otherwise the appellant would be in a position to obtain a new trial or a belated appeal on the basis of ineffective assistance of counsel. We noted that under the Rule of Criminal Procedure 36.9 that we could act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit and that the purpose of this exception was to take care of hardship cases but that this exception was being disregarded and that counsel was tendering out of date transcripts without a good reason for delay. We stated that in order to put the responsibility where it belongs, on the shoulder of the lawyer who is at fault, when good cause for the errors not shown, that the court would grant the appeal conditioned on the lawyer assuming fault and that in doing so, we would publish a per curiam order allowing the appeal, giving the name of the lawyer and stating why no good reason has been shown for the omission.

The same rule should ring true where the attorney has filed notice of appeal prior to the entry of the Court’s judgment.

If Watson’s attorney files a motion and affidavit in this case accepting full responsibility for not properly perfecting the appeal, then the motion will be granted. The attorney’s negligence will be duly noted and a copy of the opinion granting the motion will be forwarded to the Committee on Professional Conduct.

Accordingly, the motion is denied.


author: Jack Holt, Jr., Chief Justice.

text:
    William Martin GURLEY and Gurley Refining Co., Inc. v. Randall MATHIS, Director of the Arkansas Department of Pollution Control & Ecology Commission
    92-1017
    856 S.W.2d 616
    Supreme Court of Arkansas
    Opinion delivered June 14, 1993

      Rieves & Mayton, by: Elton A. Rieves III and William J. Stanley, for appellants.

      Department of Pollution, Control & Ecology, by: Steve Warner, for appellees.
   Jack Holt, Jr., Chief Justice.

This is a case of first impression involving the Remedial Action Trust Fund Act, Ark. Code Ann. § 8-7-501, eise#. (Repl. 1991) (RATFA), which was enacted by the General Assembly in 1985 to provide the state through its environmental agencies with the necessary authority and funds to investigate, control, prevent, abate, treat, or contain releases of hazardous substances, and among other things, to disburse funds required to assure payment of the state’s participation in response to environmental actions taken by the federal government, specifically pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CER-CLA) of 1980. 42 U.S.C. § 9601 et seq.

We hold that the state’s actions under RATFA were proper and affirm the trial court.

In the past, William Martin Gurley and Gurley Refining Co., Inc. (Gurley) operated a motor oil re-refining company. From 1970 to 1975, Gurley disposed of its secondary oil refining waste, which contained PCBs, lead, and zinc, in a pit near Edmondson, Arkansas known as the “Gurley Site.” Gurley had obtained a permit issued by the Arkansas Department of Pollution Control and Ecology (hereafter ADPC&E) to place the residues in the pits. Due to overflows from the abandoned pit in 1978 and 1979, the United States Environmental Protection Agency (EPA) undertook periodic, enforcement actions.

In 1983, following congressional passage of CERCLA, the Gurley Site was added to the National Priority List (NPL) for remedial action mandated by 42 U.S.C. § 9605(c). It remained one of 1,072 such sites listed in the 1991 version of the NPL. Hazardous waste sites are listed by the President on the NPL under CERCLA’s National Contingency Plan as a means of prioritizing these sites and designating them for a remedial response under CERCLA. 42 U.S.C. § 9605. The ADPC&E objected to aspects of the Gurley Site’s NPL ranking by the EPA and the EPA’s proposed remedy for the site. These concerns, however, were never formalized.

In 1987, the United States sued the Appellants to recover administrative costs incurred by the EPA during investigation of the Gurley Site. That case resulted in a holding by the U.S. District Court for the Eastern District of Arkansas that the EPA could recover costs despite its dispute with the ADPC&E and that the owners responsible for release of the hazardous substances were liable for response costs. United States v. Gurley Ref. Co., 788 F. Supp. 1473 (E.D. Ark. 1992).

During the pendency of this federal litigation, ADPC&E and the EPA resolved their differences over the Gurley Site remedy. Hence, in a memorandum dated March 8, 1991, the ADPC&E staff recommended to the Arkansas Pollution Control and Ecology Commission (the Commission) that the Gurley site be added to the Remedial Action Trust Fund Priority List (RATF Priority List) as authorized by Ark. Code Ann. § 8-7-501 et seq. (Repl. 1991) as a prerequisite to the ADPC&E Director expending monies from the Hazardous Substance Remedial Action Trust Fund to (1) pay the costs and expenses reasonably necessary for the administration of RATFA, (2) pay the ten percent state share mandated by CERCLA, 42 U.S.C. § 9604(c)(3), or (3) pay for the investigation, identification, containment, abatement, treatment, or control, including monitoring and maintenance of hazardous waste sites within the state. Ark. Code Ann. § 8-7-509(d) (Supp. 1991).

The Commission held a meeting on March 22, 1991, at which time the ADPC&E staff memorandum and attachments as well as Gurley’s written comments in opposition to the proposed action were submitted to the Commission. Gurley’s attorney and the Director of the ADPC&E Hazardous Waste Division addressed the Commission. Thereafter, the Commission voted in favor of adding the Gurley Site to the RATF Priority List as recorded in Minute Order No. 91-05.

Gurley appealed to Crittenden County Circuit Court from both the ADPC&E staff memorandum (Crittenden County Circuit Court No. CIV 91-177) and the Commission’s order pursuant to Ark. Code Ann. § 8-7-519 (1991) (Crittenden County Circuit Court No. CIV 91-178). Following Gurley’s request for findings of fact and conclusions of law, the circuit court first found in Case No. CIV 91-177 that the Department’s memorandum did not constitute a final, appealable order and then made the following findings of fact with reference to the Commission’s order in Crittenden County Circuit Court Case No. CIV 91-178:

6. The Appellants were in the business in West Memphis, Arkansas of re-refining and selling motor oil. In the re-refining process they removed impurities and other waste from used motor oil, and this waste was disposed of by placing it in a pit near Edmondson in Crittenden County.
7. The Gurley Site was, after investigation by the federal agency charged with such under the Super Find Program, and added to the National Priority List as a site that required remedial action, and the addition by the state of the site to the RAT List was need (sic) to trigger action. It is admitted by the Commission that prior to September, 1990 a conflict existed between the federal agency and Arkansas Department of Pollution Control and Environment concerning the remedy proposed by EPA. However, the court finds that those differences were resolved as stated by Mike Bates of the staff to the Commission.
8. The court further finds that proper notice as set out in Rule 8 of the Administrative Procedures Manual was given to the public for public hearing held February 20, 1991, concerning the proposed additions to the State Priority List; Gurley’s representatives appeared and their attorney and one Edward Lucas presented comments and further were allowed to add written statements including transcripts of testimony of Arkansas Department of Pollution Control and Environment employees in a federal court action concerning the pit.
9. That at the March 22, 1991 meeting Gurley’s attorney was again allowed to present his views concerning the addition of the site to the RAT List, and from the questions asked of the staff by the Commission, it is apparent that the Commission considered the record.
10. The Appellant is asking this court to take jurisdiction and ignore the federal statutes that give the federal courts the authority and the method to protect the rights of all affected by [CERCLA].
11. This court is of the opinion that the action appealed from is a rulemaking or legislative function, made in accordance with Regulation 8 of the Commission, and not subject to review by this court. The Federal Acts set out in detail where the jurisdiction, venue, and remedies lie concerning the Appellants’ complaints, and it is not in this court.
12. The stay granted by this court pending a decision by this court is hereby set aside and this appeal is dismissed.

By separate orders, the court dismissed the appeal from the ADPC&E staff memorandum and affirmed the Commission’s Minute Order No. 91-05. From these decisions, this appeal arises. We make short shrift of the appeal from the staff memorandum as it clearly does not constitute a final order but merely a step in the overall administrative proceeding to place the Gurley site on the RATF List. Thus, we affirm the trial court’s dismissal of the appeal from the staff memorandum.

The balance of this opinion relates to Gurley’s appeal from the circuit court rulings with reference to the Commission’s Minute Order No. 91-05.

PROCEDURAL ISSUES

As a preliminary matter, Gurley raises a procedural issue concerning its notice of appeal to the trial court and ADPC&E’s failure to properly respond as raised in Point V of Gurley’s brief. Gurley argues that ADPC&E failed to admit or deny Paragraph 22 of its notice of appeal to the trial court relating to the Commission’s orders in case No. CIV-91-178, so it was entitled to a judgment on the pleadings as to that point, and that the trial court erred in denying Gurley’s motion in this regard.

Paragraph 22 provides:

22. The action taken by the [ADPC&E] was arbitrary, capricious, and characterized by an abuse of discretion in that:
(a) The record clearly reflects that the Department had long opposed EPA actions with regard to the Gurley Site in the following particulars:
(i) The Department disputed the Hazardous Ranking Score of 40.13 given the Gurley Site by the EPA because it was based upon faulty data. Department personnel, using the proper data, gave the Gurley Site a Hazardous Ranking Score well below that required for placement of a site on the National Priority List. Thus it is clear that the Department knew, at the time of the March 8, 1991 memorandum recommending addition of the Gurley Site to the RAT Fund List to the Commission that the Gurley Site did not meet the criteria set by the Commission for the addition of the Gurley Site to the RAT Fund List.
(ii) The Department did not accept the EPA Enforcement Decision Document and the EPA Record of Decision as evidenced by the fact that the Department on several occasions referred to the EPA remedy contained in those documents as “gold plated” and did, in fact, propose an alternate remedy. Thus it is also clear that the Department knew, at the time of the March 8, 1991 memorandum recommending addition of the Gurley Site to the RAT Fund List to the Commission that the Gurley Site did not meet this criterion set by the Commission for the addition of the Gurley Site to the RAT Fund List.
(b) The record is utterly devoid of any adequate explanation, or good reason for the reversal of the Department’s longstanding opposition to the EPA remedy and of the initial placement of the Gurley Site on the National Priority List.
(c) The record clearly reflects that at the time of the Department memorandum that the Gurley Site did not meet at least three of the four criteria established by the Commission for addition of the Gurley Site to the RAT Fund List:
(i) The Gurley Site was erroneously placed on the National Priority List by EPA;
(ii) EPA was still investigating and taking sludge samples at the site and thus had not issued a final remediation investigation/feasibility study; and
(iii) The State of Arkansas, through the Department, had not accepted the EPA Record of Decision or the Enforcement Decision Document.

In filing its response to Gurley’s notice of appeal, ADPC&E stated: “Appellees need not admit nor deny the declarations of appellants paragraph 22.” This being the case, Gurley claims that they are entitled to judgment since Ark. R. Civ. P. 8(d) provides that “averments in pleadings are admitted when not denied either generally or specifically in the responsive pleading” and that under the circumstances their pleadings in paragraph 22 should be deemed admitted and that they are entitled to judgment in this regard.

Gurley further argues that the trial court should not permit ADPC&E to amend their response since Ark. Code § 8-4-226(c)(1) (Repl. 1991) allows for only thirty days after service in filing a notice of appeal in which to file a return and that any later filing is impermissible. ADPC&E responds that there was excusable neglect and confusion on the part of their counsel in filing its initial response and, for this reason, the trial court was correct in permitting them to amend their pleadings.

As an explanation, ADPC&E states that Gurley filed two notices of appeal from the Commission’s hearing on April 11, 1991. As discussed above, one challenged the ADPC&E’s action (CIV-91-177) and the other challenged the Commission’s action (CIV-91-178). During the thirty day response period provided by Ark. Code Ann. § 8-4-226(c)(l), the father of the ADPC&E’s attorney handling both cases suddenly died. The attorney was absent for a two week period which extended beyond the time for filing the return, and, in order to file something because of the timeliness issue, the attorney responded to CIV-91-177 and CIV-91-178 as though they were identical pleadings by stating: “Appellees need not admit nor deny declarations of appellants paragraph 22” in both responses.

The trial court held a hearing on this matter on May 28, 1991. However, the in-chambers discussion of this matter has not been properly abstracted. At most, we have the trial court finding that under the circumstances, excusable neglect existed which justified a denial of the default motion and that ADPC&E was granted ten days to reform their pleadings. In making its ruling, the trial court recognized “the confusion arose from two different pleadings being filed” in the context of the circumstances (the attorney’s father’s unexpected death) when ADPC&E’s counsel was not “thinking right.”

We cannot say that the trial court abused its discretion in finding excusable neglect on the part of counsel and in permitting him to amend his pleadings.

STANDARD OF REVIEW

For its first point of error, Gurley urges us to apply a substantial evidence review to the placement of the Gurley Site on the RATF List pursuant to Ark. Code Ann. § 8-4-227(d)(5) (Repl. 1991), which states on appeals from Commission action, a circuit court may affirm or vacate the decision if the Commission action is, among other factors, “not supported by substantial evidence or record.” However, this statute addresses appeals from the Commission to circuit court and not appeals to this court.

ADPC&E replies that the decision of the Commission was a rulemaking function and not a judicial one so the less strict “arbitrary and capricious” standard of review applies instead, citing Beverly Enters. v. Arkansas Health Serv. Comm., 308 Ark. 221, 824 S.W.2d 363 (1992) and Baxter v. Arkansas State Bd. of Dental Examiners, 269 Ark. 67, 598 S.W.2d 412 (1980). ADPC&E quotes Department of Human Serv. v. Berry, 297 Ark. 607, 609, 764 S.W.2d 437, 438 (1989) for this rule:

In reviewing the adoption of regulations by an agency under its informal rule-making procedures, a court is limited to considering whether the administrative action was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law... A court must not attempt to substitute its judgment for that of the agency.

We agree with ADPC&E. We find further support for the treatment of the Commission’s decision as rulemaking by virtue of the holdings in various federal cases involving CERCLA as to placement of sites by the EPA on the NPL.

The NPL is promulgated in the form of a final rule under informal notice-and-comment rulemaking procedures. 42 U.S.C. § 9605; 5 U.S.C. § 553(c). The initial version of the NPL was promulgated as a final rule of the EPA on September 8,1983, and the list, as required by Congress, is reviewed to include new sites “no less often than annually.” 42 U.S.C. § 9605(8)(B).

The Circuit Court of Appeals for the District of Columbia is the statutory court of review for any regulation promulgated under CERCLA. 42 U.S.C. 9613(a). That court has repeated the standard of review for decisions to place sites on the NPL numerous times:

The EPA’s decision to place a hazardous waste site on the NPL is the product of informal notice and comment rulemaking, reviewable under the arbitrary and capricious standard. Eagle-Picher Indus., Inc. v. EPA, 822 F.2d 132, 137 n. 7 (D.C. Cir. 1987) (Eagle-Picher III). We will uphold the EPA’s decision if it is “consistent with the Act and the regulations promulgated thereunder, and is not arbitrary. City of Stoughton v. EPA, 858 F.2d 747, 749 (internal quotation omitted). As the agency consistently reminds us, listing on the NPL does not require any action by any party, and does not determine any party’s liability for cost of cleanup at the site. See Eagle-Picher I. . . It is intended to be a “rough list” or prioritized hazardous waste sites; a “first step in a process-nothing more, nothing less.” Eagle-Picher Indus. v. EPA, 759 F.2d 922, 932 (D.C. Cir. 1985) (Eagle-Picher II). Therefore, we have recognized the EPA’s interest in reconciling “the need for certainty before action with the need for inexpensive, expeditious procedures to identify potentially hazardous sites . . .” Eagle-Picher I, 759 F.2d at 921.
But the agency must remain aware that placement on the NPL has serous consequences for a site’s owner. See B & B Tritech, Inc. v. EPA, 957 F.2d 882, 885 (D.C. Cir. 1992) (placement on the NPL has “considerable costs”); SCA Servs. of Indiana v. Thomas, 634 F. Supp. 1355, 1361-1366 (N.D.Ind. 1986) (recognizing the potential for damage to business reputation and loss of value in property, as well as other harmful consequences, when site is listen on NPL). While we do not require the EPA’s decisions to be perfect, or even the best, see City of Stoughton, 858 F.2d at 756, we do require that they not be arbitrary or capricious.

See Kent County, Del. Levy Court v. EPA, 963 F.2d 391, 393-4 (D.C. Cir. 1992).

In Northside Sanitary Landfill, Inc. v. Thomas, 849 F.2d 1516 (D.C. Cir. 1988), the District of Columbia Circuit Court repeated the standard of review for placement on the NPL holding the District of Columbia Circuit Court held that North-side did not properly present its objection to the EPA during the rulemaking process, so it would not address the merits of their objections:

However, we note that were we to reach those merits, we would still deny Northside’s petition for review because the EPA’s decision to place the Northside site on the NPL finds ample support in the record before us. Thus, in our view, the EPA’s decision was in no way arbitrary or capricious. See Eagle-Picher I, 759 F.2d at 921 (setting forth the standard of review for decisions concerning NPL).

Northside, 849 F.2d at 1521. See also Washington State Dept. of Transp. v. EPA, 917 F.2d 1309 (D.C. Cir. 1990). Stoughton v. EPA, 858 F.2d 747 (D.C. Cir. 1988).

We choose to treat our Remedial Action Trust Fund Act, Ark. Code Ann. § 8-7-501, et seq. (Repl. 1991), as the federal courts treat NPL for several reasons. First, we have long held that the federal courts’ construction of federal statutes upon which state statutes have been patterned should be accorded “great weight” in our own construction of those state statutes. Dicken v. Missouri, Pacific Railroad Co., 188 Ark. 1035, 1039, 69 S.W.2d 277, 279 (1934). The Remedial Action Trust Fund was created by our General Assembly to meet the ten percent state contribution required by Congress before the Superfund monies could be expended to cleanup a hazardous waste site. 42 U.S.C. § 9604(c). Indeed, the legislative intent section of our act lists CERCLA, among other things, as a reason for its enactment:

(a) It is the intent of the General Assembly to provide the state with the necessary authority and funds to investigate, control, prevent, abate, treat, or contain releases of hazardous substances necessary to protect the public health and the environment, including funds required to assure payment of the state’s participation in response actions pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, and to encourage the reduction of hazardous waste generation.

Ark. Code Ann. § 8-7-502(a) (Repl. 1991). Also, Ark. Code Ann. § 8-7-509(d)(2) (Repl. 1991) specifically provides that monies in the Hazardous Substance Remedial Action Trust Fund are to be used, among other things, to pay the state share mandated by 42 U.S.C. § 9604(c)(3), or CERCLA.

Further support for this argument is found at Ark. Code Ann. § 8-7-507 (Repl. 1991), “Compliance of federal and state entities”:

Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the federal government and the state government shall be subject to, and comply with, this part in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under this section.

And in Ark. Code Ann. § 8-7-701 (Repl. 1991), the legislative intent section of the “Federally Listed Hazardous Sites” chapter:

The purpose of this subchapter is to encourage response actions at federally listed hazardous sites; to facilitate agreements related to property access and use to implement response actions at federally listed hazardous sites; to discourage activities that interfere with or obstruct such response actions; and to provide for the future use of federally listed hazardous sites after remediation.

Additionally, the state mechanism works like the NPL; there can be no expenditures from the Hazardous Substance Remedial Action Trust Fund prior to the approval by the Commission of a prioritized listing of hazardous substance sites at which remedial actions are authorized through the use of Hazardous Substances Remedial Action Trust Fund monies. Ark. Code Ann. § 8-7-509(e) (Repl. 1991). As with the federal list, the state list must be revised annually by the ADPC&E and submitted to the Commission for approval after public notice and opportunity for hearing. Id.

Given our comparison of the RATFA List to the NPL, we consider placement on the RATL List to also be a rulemaking function. As we said in Berry, supra, in reviewing the adoption of regulations by an agency under its informal rulemaking procedures, we are limited to considering whether the administrative action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Under the circumstances of this case, we hold that the actions of the Commission were none of the above and we will not attempt to substitute our judgment for that of the Commission.

RES JUDICATA

ADPC & E argues that Gurley’s claims are barred by res judicata since Judge Howard ruled on the same issues as those raised here in United States v. Gurley Ref. Co., 788 F. Supp. 1473 (E.D. Ark. 1992). Res judicata bars relitigation of a subsequent suit when (1) the first suit resulted in a final judgment on the merits, (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; and (5) both suits involve the same parties or their privies. Great Dane Trailer Sales, Inc. v. Malvern Pulpwood, Inc., 301 Ark. 436,785 S.W.2d 13 (1990). In order for a federal court judgment to be res judicata in an action in state court the parties must be the same; the judgment is conclusive only against parties or their privies or others who sufficiently participate, or are represented, in the action. Id. Clearly, these are not the same parties or their privies although some of the same issues were previously litigated. This does not rise to the level of res judicata.

DUE PROCESS

Gurley next argues that they were never afforded an opportunity for a meaningful hearing or an opportunity to cross-examine the witnesses in violation of their due process rights. Gurley cites Ark. Code Ann. § 8-7-506 and § 8-7-509(e) (Repl. 1991) for support of his right to a hearing. These read:

§ 8-7-506. Regulations - Administrative procedure.

The commission shall adopt regulations under this subchapter necessary to implement or effectuate the purposes and intent of this subchapter including, but not limited to, regulations affording any persons aggrieved by any order issued pursuant to this subchapter an opportunity for a hearing thereon, and commission review of the action.
§ 8-7-509 (e) No expenditures from the Hazardous Substance Remedial Action Trust Fund, as authorized by subdivisions (d)(2) and (3) of this section, shall be made prior to the approval of the commission of a prioritized listing of hazardous substance sites at which remedial actions are authorized through the use of Hazardous Substance Remedial Action Trust Fund moneys. This listing shall be revised annually by the department and submitted to the commission for approval after public notice and opportunity for hearing.

(Emphasis added.)

The regulations adopted by the ADPC&E pursuant to Ark. Code Ann. § 8-7-506 (Repl. 1991) are entitled “Regulation No. 8.” Gurley argues that since Regulation No. 8 became effective prior to the enactment of RATFA it is not applicable and since Regulation No. 8 makes no reference to RATFA, it is inapplicable.

We see little substance in this argument as we have determined that the actions of the Commission were an exercise of its rulemaking powers as opposed to an adjudicative hearing. The issue before the Commission was whether or not public funds should be dedicated to one site or another, not the assignment of liability on the part of property owners. In this instance it was a matter of whether or not the Commission would decide to commit its remedial action funds to a ten percent share of the ultimate cost of a federally funded remedy. 42 U.S.C. § 9604(c). Under CERCLA, the NPL listing process is considered to be a rulemaking function. Washington State Dept. of Transp. v. MIR Mental Protection Agency, supra. RATFA, as the statutory purpose of statement explains, is an extension of CERCLA. Ark. Code Ann. § 8-7-502(a) (Repl. 1991). Thus, the Commission’s discretion in exercising its rulemaking powers did not violate Gurley’s statutory right to a hearing and review or interfere with his substantive and procedural due process rights.

In sum, we affirm the trial court’s holding.


author: Robert H. Dudley, Justice.

text:
    Barry Wayne REGISTER v. STATE of Arkansas
    CR 92-735
    855 S.W.2d 320
    Supreme Court of Arkansas
    Opinion delivered June 14, 1993

      Barry J. Watkins, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant and a codefendant were charged with theft of property and criminal mischief. The codefendant pleaded guilty. Appellant pleaded not guilty, was convicted of both charges by a jury, and, because of prior convictions, was sentenced to enhanced punishments of thirty years and ten years to be served consecutively. At trial he sought to introduce the testimony of the absent codefendant’s guilty plea because, he argued, the codefendant was unavailable and his guilty plea was a statement against interest. The trial judge refused to admit the transcript of the guilty plea. Appellants assigns the ruling as error. We affirm the ruling as well as the judgment of conviction.

The rule of evidence advanced by appellant in this appeal is A.R.E. Rule 804, the rule setting out hearsay exceptions when the declarant is unavailable. He does not argue that the codefendant’s plea was admissible under Rule 803, the rule setting out hearsay exceptions when the availability of the declarant is immaterial, and we do not consider possible admissibility under that rule. Under Rule 804, the rule advanced by appellant, two requirements must be met for admissibility. First, subsection (a) requires that the declarant be unavailable, and, second, subsection (b) requires that one of the hearsay exceptions be met. The trial judge ruled that the declarant was “at least technically for the purposes of this rule, unavailable,” but that the prior testimony did not meet the requirements of a hearsay exception. We need not decide whether the appellant met the second, or the subsection (b) requirement, because, in fact, appellant did not show that the codefendant was unavailable, and we will affirm the ruling of a trial court if it reached the right result, even though it may be for a different reason. Summers Chevrolet, Inc. v. Yell County, 310 Ark. 1, 832 S.W.2d 486 (1992). Here, the trial court reached the right result, even though we affirm that result for a reason different than the one stated.

“Unavailability as a witness” includes the situation in which the declarant “[i]s absent from the hearing and the proponent of his statement has been unable to procure ... his attendance or testimony ... by process or other reasonable means.” A.R.E. Rule 804 (a)(5). The burden of proving unavailability is on the party who offers the prior testimony. Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). The party seeking to introduce the prior testimony of a witness because that witness is unavailable must show that he or she made a good faith effort to procure the attendance of the missing witness. Satterfield v. State, 248 Ark. 395, 451 S.W.2d 730 (1970); Barber v. Page, 390 U.S. 719 (1968). When there is no attempt to serve process or other effort to obtain the attendance of the missing witness, there is no good faith effort to procure the attendance of the witness, and he is not unavailable as defined by Rule 804 (a)(5). Leshe v. State 304 Ark. 442, 803 S.W.2d 522 (1991). Here, appellant did not attempt to procure the attendance of the codefendant by process or other means, even though the codefendant was on supervised probation through the same trial court. Appellant argues that it was not necessary for him to make such an effort because the State had subpoenaed the codefendant. The argument is without merit. The rule requires that the party seeking to have the statement admitted make a good faith effort to procure the attendance of the witness. Appellant made no such effort. In addition, the State’s attorney did not make any assurances that the codefendant would be produced for trial. All that appellant’s attorney did was to “make some phone calls” and “spoke to who I think is his family.” Clearly, such does not meet the requirement of a good faith effort to procure the attendance of the missing witness “by process or other reasonable means.” See Leshe v. State.

Rule 804 (a)(5) makes no distinction between the government and the defendant in defining the word “unavailable.” Accordingly, we must keep in mind the requirements of the Confrontation Clause as it might become applicable to a defendant. In order to satisfy the requirements of the Confrontation Clause, a witness in a criminal case is only unavailable if a good faith effort has been made to procure that witness. United States v. Pelton, 578 F.2d 701 (8th Cir. 1978).

Accordingly, we affirm the ruling of the trial court because appellant did not meet the first requirement of Rule 804, the requirement that the declarant be shown to be unavailable. We do not reach the issue of whether the second requirement was met, that one of the hearsay exceptions was shown.

Affirmed.