author: Steele Hays, Justice. Tom Glaze, Justice,

text:
    Linda PETERSON v. WORTHEN BANK & TRUST COMPANY, N.A.
    88-2
    753 S.W.2d 278
    Supreme Court of Arkansas
    Opinion delivered July 11, 1988

      The McMath Law Firm, P.A., by: Eileen W. Harrison, for appellant.

      Wright, Lindsey & Jennings by: Judy Simmons Henry, for appellee.
   Steele Hays, Justice.

Linda Peterson’s complaint against Worthen Bank & Trust Co., N.A., for abuse of process was dismissed on motion for summary judgment and she has appealed. Finding issues of material fact to be decided, we reverse and remand.

Worthen obtained a judgment against Ms. Peterson and her former husband for $2,788. Worthen’s attorney, Mr. Fred Bosshart, obtained six writs of garnishment between October, 1983 and July, 1984 against Ms. Peterson’s employer. In November, 1984 a seventh writ was issued against her bank account. On some of the garnishments, hearings were conducted to determine whether Ms. Peterson’s wages were exempt under the Arkansas Constitution and an exemption was upheld. In each instance the garnishment was superseded either by agreement or by court order.

In July, 1985, Ms. Peterson filed this suit for abuse of process and Worthen moved for summary judgment, which the trial court granted upon a finding that a client cannot be liable for the acts of an attorney in the absence of evidence that the client directed the acts or affirmatively acquiesced in them.

I

The first point of contention is whether Ms. Peterson demonstrated that there are issues of material fact sustaining a cause of action for abuse of process. Miskimins v. City National Bank of Ft. Smith, 248 Ark. 1194, 456 S.W.2d 673 (1970).

Abuse of process is defined by The Restatement of Torts, Second, § 682:

One who uses legal process, whether criminal or civil, against another to accomplish a purpose for which it is not designed, is liable to another for the pecuniary loss caused thereby.

Prosser and Keeton describe the tort as “now well established,” and containing two elements: an ulterior purpose and a willful act in the use of process not proper in the regular conduct of the proceeding. Prosser and Keeton on Torts, 5th Ed., § 121. The gist of the tort is misapplying process, justified in itself, “for an end other than that which it was designed to accomplish.” Id. at 897. “The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance of any formal use of the process itself, which constitutes the tort.” Id. at 898.

Ms. Peterson relies on two components of proof — first, that the issuance of successive garnishments which repeatedly resulted in the release of her property as exempt is evidence from which a jury could infer an improper motive by the bank. She refers to Baxley v. Faster, 82 Ark. 236, 101 S.W. 755 (1907), and Lewis v. Brudine, 240 Ark. 821, 402 S.W.2d 390 (1966). Both cases recognize a cause of action for abuse of process. In Lewis we affirmed a judgment on behalf of a plaintiff who was garnished on a debt owed by her husband and in Baxley we reversed a decree ordering a perpetual injunction against judgment creditors bringing garnishment suits. The Baxley opinion contains this relevant language:

If they [judgment creditors] were using the writs of garnishment for a lawful purpose and in the manner prescribed by statute, he had no right to complain. But if he employed process, legal and properly issued, wrongfully and unlawfully for a purpose which by law it was not intended to effect, he was guilty of a malicious abuse of process and would be liable in damages for the abuse, [citations omitted].

Ms. Peterson also relies on an affidavit from Mr. Don Barnes, stating, “I have had a great deal of experience handling debtor litigation in my practice with Central Arkansas Legal Services. In my experience, creditors have never initiated repeated garnishments as was done by Worthen Bank & Trust in Ms. Peterson’s case.”

In Czap v. Credit Bureau of Santa Clara Valley, 7 Cal.App.3d 1, 86 Cal. Reptr. 417 (1970) the repeated issuance of writs of garnishment with knowledge that the judgment debtor’s wages were exempt was sufficient to sustain a cause of action for abuse of process. However, we are not convinced of the soundness of that decision and are unwilling to adopt it. Nor is it necessary that we do so, because the appellant relies on the testimony of Mr. William Luppen that while an attorney for Central Arkansas Legal Services he appeared on Ms. Peterson’s behalf at garnishment hearings on March 12 and December 10, 1984 and on one occasion Mr. Fred Bosshart stated that he intended to get Ms. Peterson fired from her job with Universal Life Insurance Company and had already spoken with an official at that company’s Memphis office. Mr. Bosshart denies the assertion, but on review of summary judgment, we assume the allegation to be true, and decide only whether a fact is material and in dispute. Obviously it is in dispute and as to materiality it hardly need be said that the avowed use of garnishment as a means of effecting the discharge of a judgment debtor could be found to be an improper purpose for the use of process.

II

We turn to the question which prompted the trial court to grant summary judgment, i.e., whether a client can be held accountable for the acts of an attorney which prove to be injurious to a third party where there is no evidence that the client directed the acts or acquiesced in them. The answer, we believe, is in the affirmative.

The rules of agency generally apply to the relationship of attorney and client. The editors of 7 A C.J.S. Attorney & Client § 180, provide this summary:

[U]sually the general rules of law which apply to agency apply to the relation of attorney and client. [Citing White & Black Rivers Bridge Co. v. Vaughan, 183 Ark. 450, 36 S.W.2d 672(1931)]. Accordingly, the omissions, as well as commissions, of an attorney are to be regarded as the acts of the client whom he represents, and his neglect is equivalent to the neglect of the client himself. [Citing Blackstad Mercantile Co. v. Bond, 104 Ark. 45, 148 S.W. 262 (1912)]. Attorney’s acts are attributed to the client. Thus, in the absence of fraud, the client is bound, according to the ordinary rules of agency, by the acts, omissions, or neglect, of the attorney within the scope of the latter’s authority, [citing Riley v. Vest, 235 Ark. 192, 357 S.W.2d 497 (1962), and Beth v. Harris, 208 Ark. 903, 188 S.W.2d 119 (1945)] whether express or implied, apparent or ostensible. In other words, whatever is done in the progress of the cause by such attorney is considered as done by the party, and is binding on him . . .

We applied these principles recently in Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986), affirming ajudgment against a client based on the attorney’s tortious conduct in the course of his representation, and irrespective of proof of knowledge or acquiescense by the client. W. Seavy, Agency, § 91 (1964).

The attorney in this case was employed to collect the judgment. The successive garnishments were allegedly directed by the bank and specifically authorized by the bank. A bank employee allegedly attended every hearing on the issue of exemption. There is no proof that the bank had knowledge of any objective by its attorney relative to Ms. Peterson’s employment, but so long as the attorney is acting within the scope of employment and in accordance with what is believed to be the client’s interest, albeit mistakenly, that suffices. See Hewes v. Wolfe, 339 S.W.2d 16 (N.C. App. 1985); Flight Kitchen, Inc. v. Chicago Seven-Up Bottling Co., 317 N.E.2d 663 (Ill. App. 1974); Jaquity v. Stanger, 310 P.2d 805 (Ida. 1957); Merchants and Planters Bank & Trust Co. v. Ussery, 183 Ark. 838, 38 S.W.2d 1087 (1931); Foster v. Pitts, 63 Ark. 387 (1897).

The dissenting view holds that the case should be affirmed because appellant failed to plead an agency relationship between Worthen Bank and Mr. Fred Bosshart. It is clear from the remarks of the trial court that his reason for dismissing the action was not on that ground, but on the mistaken conclusion of law that a client could not be liable for the acts of an attorney, “absent the direction or at least affirmative acquiescence by such client.” We decline to affirm a summary judgment on a basis not relied on here or below by either the parties or the trial court. To do that we would have to assume that had the appellant amended her complaint under ARCP Rule 15(a) it would have been stricken on grounds of prejudice or causing undue delay. Or had the appellant moved to conform the pleadings to the proof, which can be done up until judgment under Rule 15(b), it would have been denied. Since these steps, particularly the former, are allowed rather liberally, we decline to assume on review of summary judgment that appellant would have been denied the opportunity to plead agency, should that be necessary.

Appellee has asked for costs of $858.50 in preparing a second brief necessitated by the appellant’s having obtained leave to file a substituted Abstract and Brief. The motion for costs is granted.

Reversed and remanded.

Dudley, J., not participating.

Hickman, J., dissents.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. Appellant appealed from the trial court’s summary judgment order, but failed to abstract that order and some other matters that the appellee believed were fatal to appellant’s appeal pursuant to Ark. Sup. Ct. R. 9. In denying the appellee’s motion to affirm under Rule 9, this court allowed the appellant to supplement her abstract and now awards costs to the appellee because second briefs were required as a result of the appellant’s having obtained leave to file a substituted abstract. Previously, this court has held repeatedly that a flagrant violation of Rule 9 occurs when the order or decree is not abstracted.

As I understand what the court has done, an appellant may now correct his or her abstract of record after the appellee points out a flagrant violation of Rule 9, but the appellee will be entitled to the costs incurred which result from the appellant’s abstracting error; the appellee may not, however, be entitled to an affirmance. Because I think Rule 9 is too harsh, I agree with the court’s decision in this cause and would hope that this is some indication that the court will modify Rule 9 with the idea of providing a better means than a summary affirmance of an appeal to ensure a sufficient record is provided by parties or their attorneys for this court’s review.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    SEBASTIAN COUNTY EQUALIZATION BOARD, et al. v. The WESTERN ARKANSAS COUNSELING & GUIDANCE CENTER, INC.
    88-53
    752 S.W.2d 755
    Supreme Court of Arkansas
    Opinion delivered July 11, 1988

      Martin, Vater, Karr & Hutchinson, by: Charles Karr, for appellants.

      Paul L. Giuffre, for appellee.

      Friday, Eldredge & Clark, by: Walter A. Paulson II, for amicus curiae Arkansas Council of Community Mental Health Centers, Inc.
   Steele Hays, Justice.

The only issue is whether the trial court correctly granted a tax exemption to the appellee, Western Arkansas Counseling and Guidance Center.

The Guidance Center is a community mental health clinic operating in six counties in western Arkansas. It was organized in 1969 as a non-profit corporation pursuant to Ark. Code Ann. §§ 20-46-301 (1987), et seq., as are similar mental health centers throughout the state. The Guidance Center serves six counties including Sebastian County and owns properties in all six counties.

The Center’s properties have been exempt from taxation since the Center acquired them, but as a result of reappraisal the Sebastian County property was added to that county’s tax rolls in 1986. The Center appealed to the County Equalization Board and the county court where the assessment was affirmed. The assessment was then appealed to the circuit court which reversed the county court and granted the Center tax exempt status from the assessed ad valorem taxes. It is from that order that the appellants bring this appeal.

Appellants’ argument is that the Center failed to meet its burden of showing its status as a charitable organization as required by the pertinent constitutional provision, Art. XVI, § 5:

(b) The following property shall be exempt from taxation: public property used exclusively for public purposes; churches used as such; cemeteries used exclusively as such; school buildings and apparatus; libraries and grounds used exclusively for school purposes; and buildings and grounds and materials used exclusively for public charity.

In order to qualify for the exemption under the constitution, an entity must show that it is a charitable organization and that the property claimed for exemption is used exclusively for charitable purposes.

There can be no real dispute that the Center is a charitable organization. It was stated in Burgess, Judge v. Four States Memorial Hospital, 250 Ark. 484, 464 S.W.2d 690 (1971) that a benevolent and charitable organization’s property used as a hospital may be constitutionally exempt from taxation if it is open to the general public, if no one may be refused services on account of inability to pay and if all profits from paying patients are applied to maintaining the hospital and extending and enlarging its charity. See also Hot Springs School District v. Sisters of Mercy, 84 Ark. 497, 106 S.W. 954 (1907).

Appellant does not contend that a mental health clinic is distinguishable from a hospital for purposes of applying the test of Burgess, supra, nor do we recognize a distinction. The Center’s operations meet the requirements stated in Burgess in all respects. Pete Kennemer, the executive director of the Center testified that any resident of the six counties served by the Center who seeks its services would be treated, that the Center accepts anyone regardless of race, creed, color or ability to pay. The Center’s acceptance and treatment of those who are unable to pay is further established by the Center’s subsidizing of a majority of its clients, as noted below. Kennemer stated that any excess income was used for expansion or as operating income and none was used for private gain.

Turning to the primary argument, appellant insists because the Center has paying clients, it is not used exclusively for charitable purposes, as required by Art. XVI, § 5 of the Constitution. However, as our cases have interpreted that provision, the fact that some patients pay for services does not destroy the constitutional exemption.

This question was directly answered in Burgess, supra, on similar facts where the same argument was made. The hospital in question was a non-profit corporation that was formerly owned by the St. Louis Southwestern Railroad Lines Hospital Trust and was used exclusively by employees of the railroad and its subsidiaries who were members of the trust. The hospital and its buildings were donated to the Four States Memorial Hospital in 1967. The evidence showed that 50-53 % of the hospital patients were members of the trust and an additional 700-1000 patients were not members. The hospital also saw approximately 2,000 patients under the Medicare program. Rates for all patients were the same and as to the Medicare patients, the difference in the amount billed and amount paid by Medicare was made up by paying patients. Over a three year period the hospital had written off $46,000 which was not made up by paying patients. In its second year of operation the hospital showed a gain of $45,152 most of which went to offset a deficit of $38,208 in the following year, and the balance went into service and improvements. The Burgess appellants argued that only three charity patients had been treated at the hospital. While the court did not comment on this figure specifically, it noted there probably would have been many more charity cases had it not been for Medicare.

The court went on to define what constitutes a charitable hospital, and then addressed appellants’ arguments regarding the effect of the paying patients and the trust members on the hospital’s exempt status:

We do not agree with appellant that appellee’s operation is so oriented toward service of the Employees Trust Association that, as a matter of law, it is outside the scope of the constitutional exemption.... It does not appear that the common directors of the hospital and the trust have acted, in any way, to prefer members of the trust over any member of the general public. The mere fact that the members of the trust use the hospital along with the other members of the general public, and on the same basis, would not change its charitable purposes so long as its receipts from any source are held in trust for the furtherance of these purposes. [Our emphasis].

Essentially the same response was given by this court in 1907 when this issue was first raised in Sisters of Mercy, supra. We held that the paying patients would not destroy the concept that the hospital was being used exclusively for charitable purposes, as long as the money received is “devoted altogether to the charitable object which the institution is intended to further.” We believe this is the trend in other jurisdictions, that charitable hospitals will not lose tax exempt status even though some recipients may be able to pay some or all of the cost of benefits they receive. See 71 Am. Jur. 2d State and Local Taxation §§ 373, 386.

Compared to Burgess, these facts make a stronger case that the Center is used exclusively for charitable purposes. Pete Kennemer testified that as of June, 1968, the Center had 1,351 active cases. 470 of those, or 35%, were being seen without charge. Another 310 patients, 23 % of the caseload, paid 10% of the fee. Thus, 58% of the Center’s cases were individuals who paid no more than 10% of the fee or were seen for nothing. We find no merit in appellant’s argument that the Center is not used exclusively for charitable purposes.

The Center also has a Community Building, which houses a gymnasium and four meeting rooms. The gymnasium is for use by the Center’s patients and when not so used is open to the general public for a fee. The amount of the fee is not reported, but the program generated $8,274 in 1986 from approximately 250 members, about $33 per individual. The meeting rooms are used for various classes held by the Center and are also made available to numerous non-profit organizations at no cost. They are rented to private organizations for $20 per day and in 1986 produced about $600, which the director testified may not cover the cost of the utilities.

The gymnasium and meeting rooms present no impediment to exemption. The correlation between physical fitness and mental health justifies the operation of a gymnasium by the Center and its use as a recreational facility by the general public entails only an incidental fee. The meeting rooms which are used by other non-profit groups without charge and which produce only about $600 annually from private usage do not destroy the exempt status of the building. Hilger v. Harding College, 231 Ark. 686, 331 S.W.2d 851 (1960); Yoes v. City of Fort Smith, 207 Ark. 694, 182 S.W.2d 683 (1944).

We cannot say the trial court’s finding that the Center’s property is exempt was clearly erroneous and the judgment is affirmed.


author: David Newbern, Justice. Darrell Hickman, Justice,

text:
    Terry L. SHELTON v. James T. SHELTON
    88-14
    752 S.W.2d 758
    Supreme Court of Arkansas
    Opinion delivered July 11, 1988

      Brazil, Clawson & Adlong, by: Matthew W. Adlong, for appellant.

      Hoofman & Bingham, P.A., by: John Biscoe Bingham, for appellee.
   David Newbern, Justice.

Terry L. Shelton, the appellee, sued his father, James T. Shelton, the appellant, for intentionally interfering with Terry’s contract right to employment by C & F Coffee Company, a corporation of which each of them owned fifty per cent. The jury returned a verdict in Terry’s favor for $23,000 for lost wages, $60,000 for wages to be lost in the future, and $17,000 punitive damages. The trial court gave Terry Shelton the option of a remittitur of $75,000, thus reducing the damages to $25,000, or the granting of a new trial. We hold the court abused its discretion in holding that the damages were excessive, and thus the order conditionally granting a new trial is reversed.

C & F Coffee Company sells supplies to restaurants and snack bars. James Shelton has worked for the company since 1954. Terry testified he went to work for the company in 1975, at age 17, when James had a heart attack, and someone was needed to operate James’s route. James Shelton purchased an interest in the company in 1978. Terry purchased an interest in 1981, and the two became sole owners in 1983.

James and Terry each operated truck routes, and each was paid one-half the profits from his route sales, receiving no other income from the corporation. In 1981, Terry was injured in a wreck while driving his route. He testified he suffered some soreness and stiffness after the wreck for which he sought chiropractic treatment, but he continued to work some four years before he had surgery, in May, 1985, on his neck. Two disks were removed in that operation, and in August, 1985, he had further surgery to relieve pain from muscle spasms in his neck. Terry and his former wife testified about the pain and suffering caused by the injury to Terry’s neck and how he was progressively affected by continuing to work his truck route prior to the surgery.

After the surgery, Terry continued to work, but did not drive the truck route. He testified he did odds and ends at the company building. He and James had discussed his taking over the bookkeeping job from his mother. He had been told, presumably by his doctor, not to try the truck route until January, 1986. He then tried the truck route again for a four to six week period to replace an employee who had been fired. He found that he could not do the work without aggravating his condition.

James Shelton apparently became angry because Terry would not continue to drive the truck route. There was a confrontation each time Terry would attempt to come to the business. Terry tried again to drive for two weeks in July, 1986. The relationship continued to deteriorate, and in October, 1986, when Terry again ran his route for a short time, James told Terry not to take anything from the business. James would order Terry off the company premises when he attempted to come to work. James admitted he and Terry both used profanity in these encounters and that he thought of harming Terry. He admitted threatening Terry and that he might have said he would break Terry’s neck again, but he denied having threatened to burn Terry’s house. Terry then began avoiding James by coming in after hours to load his truck. James had the locks and the burglar alarm changed so that Terry could not enter the building.

James Shelton refused to sign Terry’s paycheck in July, 1986. Terry continued to come to work until November of that year without being paid. He ran his route again October 8 to November 3, 1986, replacing an employee who had been fired, and, instead of turning over the receipts to James, he deposited them in a separate company bank account he had opened. On November 3,1986, Terry wrote a letter to James stating that he could no longer service his accounts without access to the building. He enclosed records pertaining to his accounts. This action was filed in December, 1986.

Terry testified from a C & F Coffee Company payroll sheet, which was introduced as an exhibit, that during the period January to July, 1986, when he ceased to be paid for his work, he earned $11,494. Based on that figure, he testified he was making $22,988 annually. He testified he had sought employment unsuccessfully and had concluded that when he did find work he would be “starting all over” with a job paying $4.50 or $5.00 per hour. He said at that rate he would earn $10,000 or $10,500 a year which would be $ 11,000 or $ 12,000 less than he had been earning at C & F Coffee Company, and that it would take him six to ten years to increase his salary to that which he had earned with the company.

After the jury returned its verdict in favor of Terry Shelton, James Shelton moved for judgment notwithstanding the verdict on the ground that there was no substantial evidence to support the damages awarded. Alternatively, he moved for a new trial on the ground that the damages were clearly excessive and the verdict was contrary to the preponderance of the evidence. In response, the court granted the motion for new trial conditioned upon the remittitur described above. The court’s order recited, in part:

1. The verdict of the jury was so clearly and palpably contrary to the preponderance of the evidence that at first blush it shocked the Court’s sense of justice.
2. The excessiveness of the verdict was fueled by the passions and prejudice of the jury due to the unbridled emotions manifested at the trial, which infiltrated the minds of the jurors, denying them the capacity to deal justly with the evidence.

1. Clear preponderance of the evidence

Arkansas R. Civ. P. 59(a)(6) permits the court to grant a new trial when “the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law.” We agree with Terry Shelton’s contention that while the trial court has some discretion in granting a new trial on this basis, it may not substitute its view of the evidence for that of the jury. Brant v. Sorrells, 293 Ark. 276, 737 S.W.2d 450 (1987); People’s Bank and Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986).

The award of $23,000 for the loss of a year’s wages was clearly supported by Terry’s testimony and the company record showing he would have earned that much, based on projection of his last six months earnings, in the year since he was last paid. While the $60,000 awarded for loss of future earnings is somewhat more speculative, it can hardly be said to be out of line with the evidence. If Terry earns, for example, $11,500 in the first of the ten years he predicted it could take him to reach his old earning figure of $23,000, he would lose $11,500 that year. Decreasing that loss by ten per cent in each of the following nine years his total loss would be $63,250. If he were to earn only $10,500 in his first year, his ten year loss, figured the same as above, would come to $68,750. Terry’s testimony was that he thought he could be earning $23,000 annually in six to ten years. If he achieves it in less than ten years, of course his loss will be less. The point is that there was testimony on which the jury could have based its $60,000 award. James Shelton presented no evidence to contradict Terry’s testimony.

In Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983), we held that the evidence necessary to show loss of future earnings with reasonable certainty must consist of (1) the amount of wages lost for some determinable period, and (2) the period during which future wages will be lost. Both of those requirements are addressed in Terry Shelton’s testimony. By entering the new trial order conditioned on remittitur, the trial court indicated the only problem was the amount of damages rather than the existence of damages in some amount. The question of whether any damages were warranted is not before us. In Wasp Oil, Inc. v. Arkansas Oil & Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983), we noted that in some instances damages cannot be proved with exactness, and in those cases we do not reverse if the cause and existence of damages have been shown despite the inability to prove precisely what the plaintiff has lost.

Nor was the award of $ 17,000 punitive damages clearly against the preponderance of the evidence. James Shelton did not contend his actions were anything but intentional. The malice with which he acted toward Terry was apparent from his testimony as well as from the testimony of Terry and other witnesses. Punitive damages may be awarded when the evidence indicates the defendant acted wantonly or with such indifference to the consequences of his act that malice can be inferred. National By-Products, Inc. v. Searcy House Moving Co. Inc., 292 Ark. 491, 731 S.W.2d 194 (1987).

2. Passion and prejudice

Having found factual support for each element of the jury’s award, it becomes difficult for us to find support for the trial court’s conclusion that the jury was motivated by passion and prejudice. The trial court saw the witnesses and must know far more than we could know about the feelings they displayed at the trial. We are thus reluctant to say that the court abused its discretion in granting a new trial in this instance. However, it is clear that we have a responsibility to review the trial court’s decision on appeal. Unless there is support which can be found in the record for the trial court’s decision to set aside the jury’s verdict conditionally, we must reverse.

While we find no cases in which we have reversed a trial court’s determination that a new trial should be granted on the ground of excessiveness of damages, cases in which we have affirmed such decisions are instructive on the standard we apply. In Newberry v. Johnson, 294 Ark. 455, 743 S.W.2d 811 (1988), we affirmed a trial court’s new trial order on the ground that the amount of damages awarded was “totally unsupported and far exceed [ed] the evidence presented by the appellant” and “we [could] find nothing in the record that even comes close to establishing her damages at the excessive amount the jury awarded her.” 294 Ark. at 460. Another case in which we affirmed a new trial order based on excessiveness of damages is Freeman v. The Morrilton Water Co., 274 Ark. 419, 625 S.W.2d 492 (1981), where we found the jury award to have been totally out of proportion to the proof. None of those circumstances exist here.

Reversed and remanded.

Hickman and Purtle, JJ., dissent.

Darrell Hickman, Justice,

dissenting. The majority thinks the judge was wrong and substituted his judgment for that of the jury. I think the majority is confusing its role with that of the trial judge. We have consistently upheld the trial judge’s power to examine a verdict, weigh the evidence and finally decide, as a check against passion and prejudice, whether a verdict stands or not. Brant v. Sorrells, 293 Ark. 726, 737 S.W.2d 450 (1987); Saber Mfg. Co. v. Thompson, 286 Ark. 150, 689 S.W.2d 567 (1985); Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982).

We did not hear the testimony and cannot determine the credibility of the witnesses; yet the majority takes at face value the testimony of the parties and decides who is telling the truth. The jury initially has that power, and the trial judge has it on a motion for a new trial. We never have that power.

I would affirm the trial court’s judgment.

Purtle, J., joins the dissent.


author: Per Curiam.

text:
    William Frank PARKER v. The Honorable William H. ENFIELD, Circuit Judge and the State of Arkansas
    CR 88-95
    752 S.W.2d 283
    Supreme Court of Arkansas
    Opinion delivered July 14, 1988

      Kelley & Lujfman, by: James M. Luffmarv, and Slinkard & Halbrook, by: Howard L. Slinkard, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Per Curiam.

This petition for a writ of prohibition and certiorari is filed by court-appointed counsel for William Frank Parker. Parker is ostensibly the petitioner, although counsel acknowledge that the petition is filed against his express wishes that no action for appellate review be taken in his behalf.

Parker was sentenced to death on March 30, 1988, and timely notice of appeal was filed on April 7. On April 19 Parker filed a handwritten pro se motion in the circuit court asking the court to disregard the notice of appeal and permit his execution to proceed on July 26, 1988, as ordered.

A hearing was conducted on June 27, 1988, and at the conclusion the court found that William Frank Parker was mentally competent to waive an appeal and to knowingly and intelligently exercise that choice. The court further ordered that William Frank Parker should be permitted to withdraw his appeal and execution should proceed. The trial court also ruled that counsel for William Frank Parker should not be permitted to withdraw (A.R.Cr.P. Rule 36.26), and they have filed this petition in spite of Parker’s wishes because they feel compelled to do so.

The response of the State of Arkansas by the Office of the Attorney General asserts that the record of the June 27, 1988, hearing has been ordered, that prohibition is not the proper remedy, inasmuch as the order for which prohibition is sought has already been entered, but concedes that a stay of execution may be necessary pending the completion and filing of the record.

In Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), this court held that a defendant will be permitted to forego an appeal in a death case only if he has been judicially determined to have the capacity to understand the choice between life and death and to knowingly and intelligently exercise that choice. The trial court’s decision on that issue is subject to a mandatory review, the standard being whether the trial court’s conclusion is clearly erroneous.

Whether the proceedings conducted on June 27 on Parker’s competency to waive an appeal of his death sentence were conducted in accordance with the principles adopted in Franz v. State, supra, we cannot determine until the record is lodged.

The petition for a writ of prohibition is denied, writ of certiorari for the record of the hearing of June 27,1988, is issued to be returned within thirty days, and the execution scheduled for July 27, 1988, is stayed.

IT IS SO ORDERED.


author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice, Per Curiam.

text:
    Billy Joe BRUNSON a/k/a Joe Joe v. STATE of Arkansas
    CR 88-3
    753 S.W.2d 859
    Supreme Court of Arkansas
    Opinion delivered July 18, 1988
    [Supplemental Opinion on Denial of Rehearing September 19, 1988.]

      Charles L. Carpenter, Jr., for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.

       Purtle, J., would grant rehearing.

   Jack Holt, Jr., Chief Justice.

Appellant Billy Joe Brunson was found guilty of rape, aggravated robbery, and kidnapping (two counts) and was sentenced to one hundred and sixty years imprisonment. On appeal, Brunson contends the court erred in admitting certain items of evidence pursuant to the inevitable discovery exception to the exclusionary rule. It is argued that there was no evidence of an ongoing investigation focusing on Brunson which was sufficiently disconnected from his unlawful custodial detention. We disagree.

Brunson’s second argument is that the trial court erred in allowing the victim’s in-court identification as it was tainted by a pretrial lineup already determined to be fruit of the illegal arrest. We also find no merit to this point and affirm.

The facts relevant to the first argument are as follows. On May 12, 1987, several young blacks were involved in an aggravated robbery and kidnapping incident in southeast Little Rock in which a shotgun was used. The victim’s 38 caliber handgun was taken, and he was then placed in the trunk of his car which was later abandoned.

The following day, at approximately 10:00 p.m., five black males approached a car occupied by a male and female which was parked near an intersection only a few blocks from where the incident of the previous day had taken place. One of those approaching the car wielded a handgun. The female occupant was forced into the rear seat, after which the five entered the vehicle and drove away. The male occupant was later placed in the trunk while the female was raped by several of her abductors. Certain items were taken from her person and her purse. She was then also placed in the trunk. Subsequently, the vehicle was abandoned.

Both victims escaped from the trunk, and by 11:30 p.m. police officers began investigating the incident. Descriptions were obtained of the perpetrators, and fingerprints were lifted from the victim’s car. Throughout the night and into the morning hours of May 14, officers worked on developing leads with respect to the events of both May 12 and 13.

By 8:00 a.m. on May 14, Detective Steelman was working with information which led him to a residence on West 9th in Little Rock. An individual identifying himself as Timothy Williams answered the door but was evasive in his answers to the detective’s questions. Williams agreed to accompany Steelman to the police station and allowed the detective to enter the residence while Williams put on a shirt. Inside, Steelman observed two black males asleep on the living room floor — a shotgun nearby — and one black female asleep on the couch. Williams suddenly fled the scene. The detective placed himself between the sleeping individuals and the weapon and radioed for assistance. Appellant Brunson was one of the individuals asleep in the living room. He, a Rosalind Watson, and others were awakened, handcuffed, and taken into custody. The robbery victim of May 12 later identified a handgun found at the residence as his.

Brunson was advised of his rights at approximately 10:15 a.m. on May 14, but refused to make a statement. He was placed in a lineup by 11:25 a.m. and was identified by the rape victim as one of her attackers. He was fingerprinted and formally charged at 12:45 p.m.

Sometime before 3:00 p.m., in connection with an unrelated shooting incident, officers interviewed a suspect named Kevin Brown. During the interview, Brown disclosed names by now connected with the May 13 rape. Brown was given his Miranda rights, and a written statement was taken at 4:50 p.m. in which Brown implicated himself in the rape incident and identified individuals named Rodney, Bryan Crutchfield, Tony, and Billy (identified by others as appellant Brunson) as co-participants. Billy was identified as the one who drove the victim’s car. Brown’s statement otherwise corroborated the rape victim’s version of the events of May 13.

Rosalind Watson, who was being interviewed as a suspect in the May 12 robbery/kidnapping, was also interviewed at 4:00 p.m. as to any information she might have concerning the May 13 rape. Watson named Brunson, a Johnson, Kevin Brown (her brother), a Tony, and a Bryan as individuals involved in the rape/ kidnapping/robbery based on earlier conversations she had with Brunson and a Rodney Johnson.

Through examination of police records and pictures, Detective Steelman discovered that Timothy Williams’s real name was James Goss. Based upon that information and the information supplied by Rosalind Watson and Kevin Brown, warrants were issued shortly after 4:00 p.m. on May 14 for the arrests of Goss and Crutchfield. Both were arrested by 6:45 p.m. By 7:45 p.m. Crutchfield had implicated persons named Joe Joe, Tony, Rodney, and Spider. Crutchfield identified appellant Brunson as Joe Joe, and his statement otherwise corroborated the rape victim’s statements to police. Goss, who had been arrested along with Crutchfield, gave a statement at 7:20 p.m. in which he implicated himself and supplied the names Joe Joe, Spider, Rodney, and Mark.

At trial, the victim made an in-court identification of Brunson as one of her attackers. She described in detail the events leading up to her escape from the trunk of her car and identified Billy Joe Brunson as the individual who drove the car and as one of those who later raped her. The State also introduced the fingerprints taken from Brunson after his arrest matching those lifted from the victim’s car, the lineup identification by the victim, and testimony by a forensic serologist concerning blood and saliva samples taken from Brunson linking him to the rape. Brunson filed a motion to suppress the fingerprints and the lineup identification and objected to the testimony concerning the blood and saliva samples because the evidence was fruit of an illegal arrest. The trial court agreed that Brunson had been taken into custody without probable cause, but reserved a ruling on the admissibility of the challenged items of evidence until the State could develop its theory of inevitable discovery. The court eventually admitted the evidence on that basis.

The primary thrust of Brunson’s first argument is that there is no evidence of an ongoing investigation focused on Brunson in connection with the May 13 crimes which can be disassociated from the events surrounding his illegal arrest. On that basis, Brunson contends that when the events surrounding his arrest are removed, including any witnesses and information gathered as a result of his unlawful detention, the police had nothing that, inevitably, would have led to the discovery of Brunson as a participant and, hence, to the production of the challenged evidence.

The inevitable discovery exception to the exclusionary rule was specifically adopted by the United States Supreme Court in Nix v. Williams, 467 U.S. 431 (1984). In part, the Court stated:

The core rationale consistently advanced by this Court for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from violations of constitutional and statutory protections.
It is clear that the cases implementing the exclusionary rule ‘begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity.’ [Emphasis in original — citation omitted] Of course, this does not end the inquiry. If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means . . . then the deterrence rationale has so little basis that the evidence should be received. [Emphasis ours.]

Three years prior to the holding in Nix, this court on its own adopted the inevitable discovery rule, but we stated, “the state must prove by clear and convincing evidence that it would have acquired the items through legal means . . . [and] the officers involved must have acted in good faith in accelerating the discovery of the evidence.” [Emphasis ours.] Fain v. State, 271 Ark. 874, 611 S.W.2d 508 (1981). Nix, however, merely required that the State make its showing by a preponderance of the evidence, and the Court specifically rejected the requirement that the prosecution make a threshold showing of good faith conduct by the police.

This court cited Nix with approval in Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988), where we stated, “[t]he state must prove the ‘inevitable discovery’ would have occurred by a preponderance of the evidence.” We find the standard adopted by the Supreme Court in 1984 well suited to the task of securing the goals of the exclusionary rule while assuring that the police are not placed in “a worse position than they would have been in if no unlawful conduct had transpired.” Nix v. Williams, 467 U.S. at 445. Contrary to our position in Fain, we now find that it is not incumbent that the State establish good faith conduct as to the accelerated discovery of the evidence (we note that in the present matter the trial court found no evidence of bad faith nor does the record indicate that Detective Steelman acted in bad faith).

The trial court was correct in concluding that Brunson’s identity as a participant in the May 13 crimes — hence the challenged evidence — inevitably would have been discovered by lawful means. The collective information possessed by the police pursuant to the statements provided by Rosalind Watson, Kevin Brown, James Goss, and Bryan Crutchfield — independent of Brunson’s unlawful custodial detention — is persuasive evidence that Brunson’s identity, his eventual arrest, and therefore discovery of the challenged evidence was inevitable.

Insofar as Goss is concerned, Detective Steelman’s contact with that individual came prior to any illegality, and the subsequent arrest of Goss was neither aided by nor tainted by the events surrounding Brunson’s detention. When Goss was questioned, he implicated Brunson (Joe Joe). Nor was the arrest of Kevin Brown associated with Brunson’s illegal arrest, and statements by Brown led to the arrest of Crutchfield. Both Brown and Crutchfield implicated Brunson, either directly or by identifying “Billy” as the driver of the victim’s car.

As to Rosalind Watson, she was taken to the police station along with Brunson and others who had been discovered at the residence. She was questioned as a suspect in connection with the robbery on May 12 but was questioned as a potential witness in connection with the rape and related crimes on May 13. She implicated Brunson directly as to that incident.

Relying on United States v. Ceccolini, 435 U.S. 268 (1978), Brunson seeks to exclude any statements provided by Watson. In Ceccolini, a lower court had “granted respondent’s motion to suppress the testimony of [a witness], because she ‘first came directly to the attention of the government as a result of an illegal search’ and the Government had not ‘sustained its burden of showing that [the witness’] testimony definitely would have been obtained without the illegal search.’ ” The court of appeals affirmed but the Supreme Court reversed.

Although the Supreme Court reaffirmed the proposition that “verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officer’s action in the present case is no less the ‘fruit’ of official illegality than the more common tangible fruits,” the Court qualified its position. The Court found that in determining whether the exclusionary rule with its deterrent purpose should be applied to cases involving live-witness testimony, the rule’s benefits should be balanced against its costs, and, in evaluating the standards for application of the rule to live-witness testimony in light of this balance, certain material factors must be considered. These factors include the time span between the Fourth Amendment violation and the witness’s testimony; the degree of free will exercised by the witness; and the fact that exclusion of the witness’s testimony would perpetually disable the witness from testifying about relevant and material facts regardless of how unrelated such testimony might be to the purpose of the original illegality or the evidence discovered thereby.

Applying these factors to the present case, it is clear that the time span between Brunson’s custodial detention without probable cause and Rosalind Watson’s statement to officers on that same day implicating Brunson is not great. It is also clear that Watson was a young black female in custody as a suspect in the May 12 robbery. However, we find no evidence of record that her statements implicating Brunson in the May 13 rape were not of her own free will. Moreover, exclusion of Ms. Watson’s statements would perpetually disable a witness from testifying about relevant and material facts under circumstances where the testimony is, for all practical purposes, unrelated to the factors which rendered Brunson’s detention unlawful.

Brunson further objected to the introduction of the statements by Rosalind Watson (who was unavailable as a witness at trial) on grounds of hearsay. It is clear, however, that the testimony was received not to prove the truth of the matter asserted, i.e., that Brunson committed the crimes as described (see Rule 801(c) of the Arkansas Rules of Evidence), but rather to show that the discovery of Brunson’s identity was inevitable. As such, the argument is without merit.

Taken as a whole, we are convinced that the trial court was correct in concluding that the State met its burden in demonstrating that the challenged evidence inevitably would have been discovered by lawful means. We find no error on this point.

Brunson’s second argument is also without merit. At trial, the female victim testified that Brunson was one of the five individuals who had kidnapped her. She first described him as the one who drove her car from where it had been parked and that he later moved to the rear seat after the car was stopped near a house with a yard light which illuminated the interior of the car. She testified that Brunson raped her and attempted other sexual contact and that she was able to observe the clothing and faces of her attackers on several occasions for a total of at least fifteen to twenty minutes. She was able to view Brunson directly when she was placed in the trunk and later when the trunk was opened and she was slapped and told not to look at the individuals. She described Brunson as a young black male with bushy hair who was wearing a red T-shirt, a cap, and loud Hawaiian shorts.

When the State asked the victim whether she was able to identify her attackers at an earlier lineup and whether she could identify anyone from that night as being present in the courtroom, counsel for the defense objected on the grounds that the lineup was fruit of the illegal arrest, that the police had directed those participating in the lineup to speak, that there was no picture of the lineup participants, and that there was only a general description by the officers testifying at trial as to whether the participants were similar in height, weight, and looks. Counsel further objected that it was dark and raining at the time of the alleged rape, that the victim only gave a general description of her attackers, and that any in-court identification should be suppressed as tainted by the lineup. The trial court agreed that the lineup was fruit of the illegal arrest but allowed the victim to make an in-court identification provided that the State could show that the identification was based upon the victim’s observations at the time of the crime.

Both parties rely upon the Supreme Court’s decision in United States v. Crews, 445 U.S. 463 (1980), as dispositive of the admissibility of the in-court identification. In Crews, the Court found that although lineup identifications which were fruit of a Fourth Amendment violation might under some circumstances render an in-court identification inadmissible, where the courtroom identification rested upon an independent recollection of the victim’s initial encounter with the assailant, uninfluenced by the pretrial proceedings, the in-court identification need not be suppressed. The Court found it significant that the victim in Crews had viewed her assailant at close range for a period of 5-10 minutes under excellent lighting conditions with no distractions, that the respondent closely matched the description given by the victim immediately after the crime, that the victim failed to identify anyone else and had twice selected respondent in nonsuggestive pretrial proceedings, and that only a week had passed between the victim’s initial observation of the assailant and her first identification of him.

In Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988), this court quoted from Crews and stated that a victim’s in-court identification of the accused has three distinct elements. First, the victim must be present at trial to testify as to what transpired between her and the offender, and to identify the defendant as the culprit. Second, the victim must possess knowledge of and the ability to reconstruct the prior criminal occurrence and to identify the defendant from her observations of him at the time of the crime. Third, the defendant must also be physically present in the courtroom so that the victim can observe him and compare his appearance to that of the offender.

We have closely examined the record before us in light of Crews and find that the trial court’s determination to permit the in-court identification was proper. The victim was able to view Brunson for several minutes in the illuminated car. Her description of Brunson after her escape from the trunk matched Brunson in all respects, and she failed to identify anyone else as having been the driver of her car and the one who subsequently raped her. She had selected Brunson in the lineup — as to which we find no evidence of record indicating suggestiveness — and that identification occurred only hours after the crime. She was present at trial and testified as to what transpired between her and Brunson. She reconstructed the crime and identified Brunson — who was present at trial — as one of the offenders. After identifying him at trial, she stated, “I remember him, with no doubt, from the incident.” Accordingly, we find no error on this point.

On the rape charge, Brunson was sentenced to life. In accordance with Rule 11 (f) of the Rules of the Supreme Court and the Court of Appeals, we have examined all other objections made during the trial. We find no error.

Affirmed.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. Another chip at the Fourth Amendment! I concur in order to defend our opinion in Fainv. State, 271 Ark. 874,611 S.W.2d 508 (1981), not merely because I wrote the opinion for the court, but because I believe Fain reflects the correct expression of the Fourth Amendment as it relates to the “inevitable discovery” exception to the exclusionary rule. Is it not enough for this court and the United States Supreme Court to constantly engineer new exceptions to the exclusionary rule? Must we also broaden the scope of the exceptions themselves to the point where there is nothing left of the rule and the Fourth Amendment except empty words on faded paper? If we cannot expect our public police officers to act in “good faith” at all times, then something is wrong with the system. Curiously, there is absolutely nothing in the record to indicate that Detective Clyde Steelman was not only acting within the law at all times, but that he was also acting in “good faith.” Why, then, does this court choose to “water down” the Fourth Amendment when there is absolutely no hint of “bad faith” on the part of the police?

The reason for deleting the “good faith” requirement on the part of the officers escapes me completely. Inevitably it will be used for the purpose of allowing the introduction of evidence obtained as a result of unlawful entries by officers. A cure such as this is worse than the disease.

The opinion in Nix v. Williams, 467 U.S. 431 (1984), states in part:

756 S.W.2d 457

If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means. . . then the deterrence rationale has so little basis that the evidence should be received.

The present decision of this court completely ignores the fundamental purpose of the exclusionary rule — to deter “bad faith” conduct on the part of the government.

The state is no more justified in violating the law than those accused by the state of doing so. I can only pray that the Fourth Amendment is rediscovered before it is forgotten.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

SEPTEMBER 19, 1988

Per Curiam.

The petitioner, Billy Joe Brunson, was convicted on charges of rape, aggravated robbery, and kidnapping (two counts). We affirmed. Brunson v. State, 296 Ark. 220, 753 S.W.2d 859 (1988). Brunson petitions this court for a rehearing on the grounds that at the time briefs were originally filed he had requested by letter that the case be set for oral argument — which was never done. In support of his petition, Brunson alleges five errors of fact or law in our opinion of July 18,1988, and requests that we vacate the opinion and set the case for oral argument.

While we acknowledge the inadvertent error by the clerk in failing to set the case for oral argument, our examination of Brunson’s arguments in his petition for rehearing convinces us that our July opinion contains no error. Accordingly, the petition for rehearing is denied.

Purtle, J., would grant.


author: Jack Holt, Jr., Chief Justice.

text:
    Barbara McCRORY, Individually, and Thomas McCrory, a Minor, by His Mother and Next Friend, Barbara McCrory v. Thomas J. JOHNSON, Brad W. Houston, and Jacquetta Alexander, in Her Official Capacity as Pulaski County Circuit Clerk
    88-19
    755 S.W.2d 566
    Supreme Court of Arkansas
    Opinion delivered July 18, 1988

      James DePriest and Griffin J. Stockley, Central Arkansas Legal Services, for appellants.

      Vaughan and Bamburg, by: Keith Vaughan, for appellees Thomas J. Johnson and Brad W. Houston.

      Ivester, Henry, Skinner & Camp, A Professional Corporation, by: Robert Keller Jackson, for appellee Jacquetta Alexander.
   Jack Holt, Jr., Chief Justice.

This appeal questions the constitutionality of our prejudgment attachment code provisions, Ark. Code Ann. §§ 16-110-101 — 16-110-309 (1987). We find them unconstitutional.

The facts of the case are as follows: On September 15,1986, appellant Barbara McCrory leased a house from appellee Thomas J. Johnson through his rental agent, appellee Brad W. Houston. Under the written lease agreement, McCrory was to pay $600.00 a month for one year. After McCrory failed to pay part of the December rent and all of the January and February rent, Houston placed a note on her door asking her to pay rent or vacate the premises. When she did not respond, he placed a termination notice on the door requesting her to vacate the premises within ten days. Shortly after the ten-day period expired, Houston removed all the personal property (furniture, appliances, and household items) from the residence and deposited it at a local storage facility.

On April 9, 1987, Johnson filed a complaint in Pulaski County Circuit Court alleging that McCrory owed him the sum of $2,940.00 for rent, late charges, and damages to his property. With this complaint, he filed an affidavit for attachment, supported by bond, alleging that Barbara McCrory was about to remove her personal property (already stored by Houston) from the state. On April 10, the circuit court clerk issued a writ of attachment, which was served on April 30. On May 7, McCrory filed a motion to dissolve the writ, which contained, in part, a prayer for an immediate hearing.

Subsequently, Barbara McCrory, individually and on behalf of her son, Thomas McCrory, filed a counterclaim and an amended complaint and counterclaim against Houston and Johnson alleging, among other causes of action, that they had violated the Arkansas forcible entry and detainer code provisions, Ark. Code Ann. §§ 18-60-301 — 18-60-312 (1987), by removing her property from the house. The McCrorys also asserted that the actions of Houston and Johnson in attaching the property pursuant to our prejudgment attachment code provisions denied them (the McCrorys) due process of law guaranteed by the fourteenth amendment. The McCrorys asserted that the attachment code provisions are unconstitutional because they do not require that prompt notice of the attachment or of possible state and federal exemptions be given to the debtor and do not make available a prompt hearing at which a debtor can claim exemptions. Additionally, the McCrorys joined appellee Jacquetta Alexander, the Circuit Clerk of Pulaski County, as third-party defendant, alleging that she denied them due process of law by issuing the writ of attachment through her agent.

At a hearing on May 29, 1987, the circuit court, Special Judge Ralph Patterson presiding, sustained the writ of attachment granted in favor of Johnson. In a pretrial order filed on July 29, 1987, the trial court dismissed with prejudice the portion of the McCrorys’ counterclaim concerning the constitutionality of our prejudgment attachment code provisions on the basis of this court’s holding in Springdale Farms, Inc. v. McIlroy Bank and Trust, 281 Ark. 371, 663 S.W.2d 936 (1984), that the provisions are constitutional. The trial court also dismissed the claim against defendant Alexander. On July 30, 1987, the trial court, contravening Judge Patterson’s decision, discharged the writ of attachment because Johnson had not met his burden of showing, pursuant to Ark. Code Ann. § 16-110-101 (1987), that Barbara McCrory was about to remove or had removed her property, or a material part thereof, from the state.

At the conclusion of the jury trial, the court entered judgment for Johnson against Barbara McCrory for $2,862.40 damages, plus reasonable attorney’s fees, interest, and costs and dismissed with prejudice the McCrorys’ counterclaim against Johnson and Houston. From this order, the McCrorys appeal.

I. TIMELINESS OF APPEAL.

The appellees assert that the McCrorys’ appeal on the constitutionality of the code provisions and on the dismissal of the claim against Alexander should be dismissed as untimely. We disagree.

As previously noted, in a pretrial order of July 29,1987, the trial court dismissed the McCrorys’ claim concerning the constitutionality of our code provisions and also the claim against third-party defendant Jacquetta Alexander. The McCrorys did not file a notice of appeal at this time but instead waited until after the trial court rendered final judgment in the case. Although the notice of appeal was filed within thirty (30) days of the order rendering final judgment, it was not filed within thirty (30) days of the pretrial order.

It is clear we would have dismissed the appeal if the McCrorys had appealed from this intermediate order since such orders are not final and appealable unless Ark. R. Civ. P. 54(b) is utilized. See Rone v. Little, 293 Ark. 242, 737 S.W.2d 152 (1987); Kilcrease v. Butler, 291 Ark. 275, 724 S.W.2d 169 (1987); 3-W Lumber Co. v. Housing Auth. for the City of Batesville, 287 Ark. 70, 696 S.W.2d 725 (1985). See also Mueller v. Killam, 295 Ark. 270, 748 S.W.2d 141 (1988); Burnley v. Mutual of Omaha, 291 Ark. 185, 723 S.W.2d 363 (1987). Granted, the McCrorys could have asked for certification under 54(b) in order to appeal from these orders. However, they had no duty to do so. The underlying policy of Rule 54(b) is to avoid piecemeal appeals, not encourage them. Murry v. State Farm Mut. Auto.Ins. Co., 291 Ark. 445, 725 S.W.2d 571 (1987). Accordingly, the appellees’ contention has no merit.

II. CONSTITUTIONALITY OF OUR PREJUDGMENT ATTACHMENT CODE PROVISIONS.

The McCrorys contend that our prejudgment attachment code provisions [Ark. Code Ann. §§ 16-110-101 — 16-110-309 (1987)] violate the due process clause of the fourteenth amendment because they do not require that prompt notice be given to the debtor of the attachment or of possible state and federal exemptions and do not make available a prompt hearing at which the debtor can claim exemptions. In addition, the appellants challenge our code provisions on the grounds that they create a risk of erroneous deprivation by allowing writs of attachment to be issued by a circuit clerk instead of a judge. All of their contentions have merit.

Before we scrutinize the appellants’ claims, we note that they served the office of the Attorney General with copies of their amended complaint and counterclaim in accordance with Ark. Stat. Ann. § 34-2510 (Repl. 1962) [Ark. Code Ann. § 16-111-106 (1987)], which gives the Attorney General the discretionary right to appear in any case where an Arkansas statute is challenged as unconstitutional. The office of the Attorney General declined the invitation by letter to the trial court and did not participate as a party litigant.

In Springdale Farms, Inc., supra, we held that our prejudgment attachment scheme was constitutional in that it sufficiently met six procedural due process “safeguards” necessary for a valid prejudgment attachment. These safeguards, which emanate from North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975); Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974); Fuentes v. Shevin, 407 U.S. 67 (1972); and Sniadach v. Family Finance Corp., 395 U.S. 337 (1969), are as follows:

(1) the affidavit for the writ of attachment must allege specific facts which justify attachment [Ark. Code Ann. § 16-110-106 (1987)];
(2) the petitioner must post a bond guaranteeing the defendant damages if the writ is dissolved [Ark. Code Ann. § 16-110-107 (1987)];
(3) the respondent or defendant must be allowed to regain possession by posting bond [Ark. Code Ann. §16-110-117 (1987)];
(4) requisite proof of the need for a writ must be made before a judge;
(5) an immediate hearing must be allowed, and at the hearing, the burden of proof is with the petitioner to justify the attachment; and
(6) if the writ is dissolved, damages and attorney’s fees must be awarded to the debtor [Ark. Code Ann. § 16-110-131 (1987)].

In so holding, we acknowledged that our statutory scheme did not exactly meet the fourth requirement because it permits writs to be granted by a circuit clerk instead of a judge. Ark. Code Ann. § 16-110-106 (1987). Notwithstanding, we found that our scheme met the “safeguards” test and satisfied due process for the following reason: “Because our statute requires a recital [by the creditor in an affidavit] of specific facts [of the grounds for the attachment] by one with personal knowledge, the Clerk’s role rises above that of a mere court functionary.” See Ark. Code Ann. § 16-110-106 (1987); Ark. Code Ann. § 16-110-101 (1987).

In addition, we found that the fifth safeguard was adequately met because a debtor (1) can retain possession of his attached property by posting a bond under Ark. Stat. Ann. § 31-124 (Repl. 1962) [Ark. Code Ann. § 16-110-117 (1987)]; (2) can, upon reasonable notice to the plaintiff, move at any time to discharge the attachment under Ark. Stat. Ann. § 31-128 (Repl. 1962) [Ark. Code Ann. § 16-110-118 (1987)]; and (3) can move to discharge the attachment at any time before the attachment is sustained under Ark. Stat. Ann. § 31-149 (Repl. 1962) [Ark. Code Ann. § 16-110-130 (1987)].

After Springdale Farms, Inc., we decided In the Matter of Evatt, 291 Ark. 153, 722 S.W.2d 851 (1987), in which we held that our temporary guardianship statute was unconstitutional. In this decision, we analyzed the issue of whether the state procedures met procedural due process by utilizing the “balancing of interests” test enunciated in Matthews v. Eldridge, 424 U.S. 319, 335 (1976):

[Identification of the specific dictates of due process generally requires consideration of three distinct factors. First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Although Matthews predated Springdale Farms, Inc., we did not explicitly use the Matthews analysis in Springdale Farms, Inc.

Other courts utilizing the Matthews procedural due process analysis have declared certain postjudgment garnishment or attachment statutes unconstitutional because they did not require notice of possible state or federal exemptions and did not require a prompt hearing at which to claim these exemptions. Davis v. Paschall, 640 F. Supp. 198 (E.D. Ark. 1986); Dionne v. Bouley, 757 F.2d 1344 (1st Cir. 1985); Finberg v. Sullivan, 634 F.2d 50 (3rd Cir. 1980). See also Clay v. Fisher, Inc., 584 F. Supp. 730 (S.D. Ohio 1984); Harris v. Bailey, 574 F. Supp. 966 (W.D. Va. 1983); Deary v. Guardian Loan Co., 534 F. Supp. 1178 (S.D.N.Y. 1982); Betts v. Tom, 431 F. Supp. 1369 (D. Hawaii 1977).

In Dionne, supra, the court held that in order for a postjudgment attachment statute to pass constitutional muster, it must require that the debtor be informed of the attachment, of the availability of a prompt procedure to challenge the attachment, and of the fact, generally stated, that there are certain exemptions under state and federal law which he or she may be entitled to claim with respect to the attached property.

In Davis, supra, the court held that the Arkansas postjudgment garnishment statutes were unconstitutional because they did not:

require notice to the judgment debtor informing him of the garnishment, notice of possible state and federal exemptions, a prompt hearing to permit the judgment debtor to claim exemptions, an affidavit from the creditor stating that the writ would not cause the attachment of exempt funds, or the posting of bond to compensate the judgment debtor for injury in case of a wrongful garnishment.

The facts of the case before us, coupled with the rationale expressed in the recent federal decisions and the explicit use of the Matthews balancing test in those cases and in Evatt, supra, convinces us that we must reexamine our position in Springdale Farms.

Under Matthews, supra, a balancing of the interests involved is necessary. The private interest affected in this case by the Arkansas prejudgment attachment procedure is Barbara McCrory’s interest in her personal property. This interest is clearly sufficient to require procedural due process.

The risk of erroneous deprivation of a debtor’s property interests through the use of the current Arkansas prejudgment attachment code provisions is substantial. First, there is no requirement that the debtor be given immediate notice of the attachment. Ark. Code Ann. § 16-110-111 (1987) merely provides that “the order of attachment shall be executed by the sheriff or other officer without delay.”

The facts of the instant case illustrate the inherent deficiency in our procedure. The circuit court issued the writ on April 10, 1987. However, Barbara McCrory was not served until April 30, 1987. Timely notice in this case may well have shortened the length of time in which Barbara McCrory was deprived of her property. Thus, the probable value of this additional procedure in decreasing the risk of an erroneous deprivation is considerable. See Matthews, supra.

Secondly, the absence in our prejudgment attachment code provisions of a requirement that prompt notice of possible state or federal exemptions be given to the debtor subjects him or her to an enhanced risk of erroneous deprivation. As in the instant case, a debtor may have property which may be exempt from attachment under state [Ark. Const, art. 9] or federal law. If a debtor fails to receive notice of possible exemptions, the likelihood that he or she will suffer an unwarranted property loss is markedly heightened.

Our postjudgment garnishment code provisions now require that a debtor be given notice of possible state or federal exemptions. See Ark. Code Ann. § 16-110-402(1)(A) (Supp. 1988). Our prejudgment attachment scheme should contain the same safeguard since the process due a debtor before judgment is greater than that due after judgment. See Dionne, supra. See also, Finberg, supra.

Thirdly, our prejudgment code provisions do not provide a mechanism, as our postgarnishment code provisions do [Ark. Code Ann. § 16-110-402(5) (Supp. 1988)], by which a debtor can receive a prompt hearing to claim exemptions. As noted above, in Springdale Farms, Inc., supra, we held that our procedure satisfied the immediate hearing requirement because a debtor (1) can retain possession of his attached property by posting a bond under Ark. Stat. Ann. § 31-124 (Repl. 1962) [Ark. Code Ann. § 16-110-117 (1987)]; (2) can, upon reasonable notice to the plaintiff, move at any time to discharge the attachment under Ark. Stat. Ann. § 31-128 (Repl. 1962) [Ark. Code Ann. § 16-110-118 (1987)]; and (3) can move to discharge the attachment at any time before the attachment is sustained under Ark. Stat. Ann. § 31-149 (Repl. 1962) [Ark. Code Ann. § 16-110-130 (1987)].

These procedures are inadequate to prevent an erroneous deprivation. The availability of a prompt hearing, where the burden of proof is with the petitioner to justify the attachment, is fatally absent. Although Ark. Code Ann. §16-110-130 allows the debtor, before the attachment is sustained, to move to discharge the attachment, it also provides that “the hearing . . . may be postponed by the court, upon sufficient cause, from time to time.” The fact that a debtor can retain possession of his attached property by posting a bond, although helpful to some debtors, is wholly inadequate as a substitute for an immediate hearing, especially for an indigent debtor, who cannot avail herself of this procedure.

Finally, our prejudgment code provisions are deficient because they permit writs of attachment to be issued by a court clerk instead of a judge. As noted above, in Springdale Farms, Inc., supra, we held that this procedure met the “safeguards” test and satisfied due process for the following reason: “Because our statute requires a recital [by the creditor in an affidavit] of specific facts [of the grounds for the attachment] by one with personal knowledge, the Clerk’s role rises above that of a mere functionary.” See Ark. Code Ann. § 16-110-106 (1987); Ark. Code Ann. § 16-110-101 (1987).

Ark. Code Ann. § 16-110-106 provides in pertinent part as follows:

(a) (1) An order of attachment shall be made by the clerk of the court in which the action is brought in any case mentioned in subdivision (1) of § 16-110-101, where there is filed in his office an affidavit of the plaintiff or of someone in his behalf, showing:
(A) The nature of the plaintiffs claim;
(B) That it is just;
(C) The amount which the affiant believes the plaintiff ought to recover; and
(D) The existence in the action of one (1) of the grounds for an attachment enumerated in subdivision (1) of § 16-110-101. In the case mentioned in subdivision two (2) of § 16-110-101, where it is shown by affidavit or by the return of the sheriff or other officer upon the order for delivery of the property claimed, the facts mentioned in that subdivision must exist.

It is true that this code provision requires more than mere conclusory allegations in the creditor’s affidavit, North Georgia Finishing, Inc., supra, before a clerk may execute an order of attachment. However, this fact does not alleviate the risk of erroneous deprivation caused by the issuance of a writ without examination by a judge. A judge has the superior ability to determine if the affidavit sufficiently shows (1) the nature of the plaintiffs claim, (2) that it is just, (3) the amount which the affiant believes the plaintiff ought to recover, and (4) the existence in the action of one of the grounds for attachment as enumerated in subdivision (1) of § 16-110-101. Absent a judge’s participation or supervision, there is a significant risk that a writ will be issued even though the requirements of the statute have not been met. This danger explains the rationale of North Georgia Finishing, Inc., supra, which recognized that the issuance of prejudgment writs of attachment by a judge was an important procedural safeguard necessary to satisfy due process.

The foregoing defects in our code provisions must be balanced against “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” See Matthews, supra.

The state has a strong interest in providing equitable procedural safeguards which protect the interests of both creditor and debtor. It is clear that requiring notice of attachment and of possible exemptions would not place a great burden on the state. Dionne, supra. However, a significant burden would be placed on the state judicial machinery by requiring a prompt hearing and the issuance of writs of attachment by a judge. Notwithstanding, the risk of erroneous deprivation of property interests through the use of the current prejudgment attachment procedure and the benefit of the additional safeguards substantially outweigh the burden incurred due to the additional or substitute procedures.

Accordingly, the Arkansas prejudgment attachment code provisions are struck down. Springdale Farms, Inc., supra, is overruled to the extent it is inconsistent with this opinion.

III. ISSUES ON REMAND.

A. DISMISSAL OF THE CLAIM AGAINST JACQUETTA ALEXANDER.

The McCrorys contend that the trial court erred in dismissing the claim against circuit court clerk Jacquetta Alexander in that it stated a cause of action under 42 U.S.C. § 1983 (1982). We hold otherwise.

A county court clerk can be sued for damages in a § 1983 suit. See Scott v. Dixon, 720 F.2d 1542 (11th Cir. 1983), cert. denied, 469 U.S. 832 (1984). However, a clerk may have either absolute or qualified immunity for acts done in his or her official capacity. Absolute immunity “bars a suit at the outset and frees the defendant official of any obligation to justify his actions,” while qualified immunity “is in the nature of an affirmative defense and protects an official from liability only if he can show that his actions did not contravene clearly established statutory or constitutional rights of which a reasonable person in his position should have known.” Gray v. Bell, 712 F.2d 490 (D.C. Cir. 1983), cert. denied, 465 U.S. 1100(1984). See also Imbler v. Pachtman, 424 U.S. 409 (1976).

Clerks who perform ministerial functions, such as filing orders and notifying parties, are entitled only to qualified good faith immunity. Henriksen v. Bentley, 644 F.2d 852 (10th Cir. 1981). A court clerk who performs a judicial function, such as issuing warrants, enjoys absolute immunity in a § 1983 suit. Scott, supra. See also Sharma v. Stevens, 790 F.2d 1486 (9th Cir. 1986).

Having determined above that a judge, not a clerk, should issue writs of attachment, it follows that the act of issuing such writs is a judicial function. See Scott, supra. Thus, Jacquetta Alexander was entitled to absolute judicial immunity. The trial court properly dismissed the claim against her.

B. FAILURE TO INSTRUCT THE JURY.

The McCrorys contend that the trial court erred when it refused to instruct the jury that to the extent section 19 of the lease might be construed to authorize the landlord to reenter the premises upon a default by the tenant and remove the tenant’s possessions, such section of the lease was invalid, illegal, and not to be enforced against the tenant. We agree.

Section 19 of the lease provided in part that upon default by the tenant, the “lessor may re-enter the premises remove all persons therefrom” and also that the “[l]essor shall have a lien on all buildings and moveable property on the premises belonging to the lessee while rent is in arrears.” In Gorman v. Ratliff, 289 Ark. 332, 712 S.W.2d 888 (1986), we held that lease provisions authorizing self-help by a landlord are illegal and invalid. Therefore, section 19 of the lease, to the extent it allowed self-help by Johnson as landlord, was also illegal and invalid.

The McCrorys proffered the following instruction:

You are instructed to the extent that section 19 of the lease signed by Barbara McCrory and Brad Houston might authorize Mr. Houston to reenter the premises upon a default by Barbara McCrory and eject Barbara McCrory or Thomas McCrory from the premises or remove the possessions of Barbara or Thomas McCrory from the premises, then such section of the lease is invalid, illegal, and shall not be enforced against Barbara McCrory or Thomas McCrory.

The trial court instead gave the following instruction:

Ms. McCrory has asserted that Thomas J. Johnson and Brad W. Houston have violated Ark. Stat. Ann. 34-1501 which is called the Forcible Entry and Detainer Statute. This statute is concerned with certain obligations and rights of both landlords and tenants.
In order to prove this claim, Ms. McCrory has the burden of proving the following elements:
First, that at the time she was a tenant at 23 Lucy Lane, Brad W. Houston carried away or caused to be carried away property belonging to Ms. McCrory without her permission.
Secondly, that such intentional conduct was a proximate cause of- any damages suffered by Ms. McCrory.

It is the obligation of a trial judge to instruct the jury upon the law of the case with clarity and in such a manner as to leave no basis for misrepresentation or mistake. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982). As we stated in Holiday Inns, Inc. v. Drew, 276 Ark. 390, 635 S.W.2d 252 (1982), quoting Beevers v. Miller, 242 Ark. 541, 414 S.W.2d 603 (1967):

Even if the court’s general instructions could be said technically to have covered the matter in a general way, it is error to refuse to give a specific instruction correctly and clearly applying the law to the facts of the case, even though the law in a general way is covered by the charge given unless it appears that prejudice has not resulted.

The instruction given to the jury covered the law of the case in a very general and incomplete manner. The jury very well may have been misled or confused by this instruction. The McCrorys’ proffered instruction correctly and clearly applied the law to the facts of the case. Therefore, the trial judge erred by not giving this instruction.

The appellees argue that section 19 of the lease was not relevant to the issues in the case. This argument is meritless. The illegality of this section was relevant to the issue of whether the appellees’ actions in removing the property were contrary to law — which is what the McCrorys’ counterclaim, in part, was based upon. Furthermore, not only was the entire lease admitted as an exhibit, but also the validity of this section was contested from the beginning of the case.

Additionally, the appellees argue that the proifered instruction was not a correct instruction in that it was not simple, brief, impartial, and free from argument. See Paul v. Safley Const. Co., 287 Ark. 412, 700 S.W.2d 55 (1985). This contention is also without merit.

C. COMMENT BY THE TRIAL JUDGE.

The McCrorys assert that the trial court erred when it informed the jury that the writ of attachment was legal. We agree.

The following exchange occurred at trial between Barbara McCrory, Mr. DePriest (her lawyer), the trial judge, and the jury.

Q. DePriest: Did you ever get access to your property?
A. McCrory: Quite awhile later the Court dissolved the Writ of Attachment and determined it wasn’t legal and let me have it.
The Court: No, you ladies and gentlemen, disregard that. The Court didn’t say the Writ of Attachment wasn’t legal. To the contrary, the Writ of Attachment, of course, was legal.

As previously noted, the trial court discharged the writ of attachment (which had been issued by the circuit clerk) because Thomas Johnson had not met his burden of showing, pursuant to Ark. Code Ann. § 16-110-101 (1987) that Barbara McCrory was about to remove or had removed her property, or a material part thereof, from the state. The trial court, in effect, found that under the circumstances the issuance of the writ was not authorized or permitted by our code provisions. Black’s Law Dictionary 673, 803 (5th ed. 1979) defines “illegal” as “against or not authorized by law,” and “legal,” in part, as “permitted by law.” By incorrectly stating at trial that “the Writ of Attachment, of course, was legal,” the court may have led the jury to mistakenly believe that the writ was permitted or authorized by law (legal) and erroneously conclude that the McCrorys did not have a cause of action based upon the wrongful issuance of the writ. It is reversible error for a trial court to make an incorrect statement or conclusion of law which tends to mislead the jury in arriving at its verdict. Kidd v. Gardner Associated, 92 Idaho 548, 447 P.2d 414 (1968);Gaito v. City of Pittsburgh, 390 Pa. 409, 135 A.2d 746 (1957). See also Haseman v. Union Bank of Mena & Haseman, 262 Ark. 803, 562 S.W.2d 45 (1978). The trial court’s comment was improper and should not have been made.

D. EXCLUSION OF TESTIMONY.

The McCrorys argue that the trial court erred in excluding the testimony of Elizabeth Baxley because her testimony was both relevant and admissible, and its exclusion was prejudicial to the McCrorys. We hold otherwise.

On March 30, 1987, Barbara McCrory submitted a complaint to the Prosecuting Attorney’s Office concerning the removal of her property from the house that she had leased from Johnson through his agent, Houston. Elizabeth Baxley, a paralegal in the Prosecuting Attorney’s Office, contacted Keith Vaughn, appellee Houston’s attorney, concerning the property.

During trial, the court informed the McCrorys that Baxley’s testimony would not be admissible but that it would allow McCrory to proffer this testimony. Baxley testified in chambers that Vaughn told her that he had advised Houston not to take the property.

Vaughn’s advice to Houston to not take the property was protected under the attorney-client privilege since it was made for the purpose of facilitating the rendition of legal services between a lawyer and client. Ark. R. Evid. 502(b)(1). Under Rule 502, Houston had the privilege to prevent Elizabeth Baxley from disclosing this confidential communication. Therefore, the trial court acted properly in excluding her testimony.

Reversed and remanded.

Purtle, and Newbern, JJ., not participating.


author: John I. Purtle, Justice. Tom Glaze, Justice,

text:
    Larry HARRELL v. CITY OF CONWAY
    CR 88-50
    753 S.W.2d 542
    Supreme Court of Arkansas
    Opinion delivered July 18, 1988

      Mills & Patterson, P.A., by: William P. Mills, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   John I. Purtle, Justice.

The defendant was convicted in the municipal court of two counts of indecent exposure. On appeal to the circuit court, the circuit judge remanded the case to the municipal court, effectively dismissing the appeal. The case was remanded because of the failure of defendant’s counsel to satisfactorily comply with the circuit court’s local rule requiring jury instructions to be provided to the court several days in advance of the trial. On appeal to this court the defendant contends the court erred in dismissing his appeal without a trial. He is right; the decision is reversed and the case remanded to the circuit court.

We very recently rendered an opinion concerning the same local rule. See Weaver v. State, 296 Ark. 152, 752 S.W.2d 750 (1988). Therefore, we will not recite the rule again here.

The appellant gave timely notice of appeal from his conviction in municipal court. In accordance with the circuit court’s local rule, the state filed its proposed jury instructions and the appellant filed some proposed instructions. However, the court, on its own motion, remanded the case to the municipal court because the defendant had failed to provide what the court considered adequate instructions. There was no notice or prior hearing concerning the order of remand. The circuit court entered a written order the following day. Nothing in the record indicates either attorney was present when the order was entered.

When a case is appealed to the circuit court it is to be tried de novo, i.e., as though there had been no trial in the lower court. Ark. Code Ann. § 16-96-507 (1987); Weaver v. State, supra; Stephens v. State, 295 Ark. 541, 750 S.W.2d 52 (1988); Killion v. City of Waldron, 260 Ark. 560, 542 S.W.2d 744 (1976); and Johnston v. City of Pine Bluff, 258 Ark. 346, 525 S.W.2d 76 (1975). The state concedes that the appellant has a right to a jury trial in the circuit court under the Arkansas Constitution, Art. 2, § 7, and Ark. Code Ann. § § 16-89-107 (b)(1) (1987) and 16-96-111(a) (1987). See Johnston v. City of Pine Bluff, supra. The state also concedes that a defendant has a right to a jury trial under the United States Constitution when he is charged with a “serious offense.” Baldwin v. New York, 399 U.S. 66 (1970).

The state’s chief contention is that the appellant did not argue the matter before the trial court and, accordingly, we should not consider this argument for the first time on appeal. The state relies on Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988); and Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Additionally, the state argues that we consider an argument for the first time on appeal only if the trial court was acting wholly without jurisdiction; further, that, while the trial court in this case may have been in error, the court did not act wholly without jurisdiction. It is true that Allen and Wicks stand for the proposition that an argument cannot be presented for the first time on appeal when it could have been presented at the trial level. However, there was no opportunity to present the issue of remand to the trial court because the trial court acted sua sponte, thereby preventing presentation of arguments by either side. Nevertheless, the trial court considered the issue when he remanded the case.

The trial court dismissed the defendant’s appeal on its own motion. As stated in Weaver, local rules cannot contravene a statute or be unreasonable. As the local rule was applied in this case, it was unreasonable and deprived the defendant of his right to a trial by jury.

Although a party may petition the trial court to reconsider a decision, appeal is the usual procedure. The defendant did not have an opportunity to present argument to the trial court on the matter of his right to trial de novo in the circuit court because the trial court remanded the case to the municipal court sua sponte, without notice or opportunity for a hearing. See Weaver, supra.

Under the circumstances the action taken by the trial judge was unreasonable and in effect denied the defendant his statutory right to a jury trial in the circuit court on appeal from his criminal conviction in a municipal court.

Reversed and remanded.

Dudley, Hays, and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. Members of the Bar who do appellate work should take special notice of this decision. The court, in reversing the trial court’s ruling, resorted to the “plain error” rule of appellate review, and in doing so, ignored clear Arkansas precedent that requires an objection be made at the trial court to preserve a point for appeal, Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590 (1983), and that holds this court will not consider issues raised for the first time on appeal. See, e.g., Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

My disagreement with the court’s decision herein is that the majority resorted to “plain error,” without acknowledging it, and it did so in order to reach the merits to reverse this case. While the majority opinion states “there was no opportunity to present the issue of remand to the trial court because the trial court acted sua sponte, thereby preventing presentation of arguments by either side,” such a conclusion is unsupported by the record and cannot be further from the truth. So there is no mistake as to what was done at trial, I attach to my dissent the trial court’s order, which represents the only page in the transcript that reflects what happened on the day this case was called for trial and why the case was remanded. The remaining part of the brief transcript lodged in this appeal contains no testimony, motions or arguments which would either amplify what occurred on the day of trial or in any way conflict with the findings set out in the trial court’s order. The majority totally ignores what the record reflects and even worse, claims something the record clearly does not state — that the appellant had no opportunity to object or argue the point now on appeal.

As can be seen from the court’s order, both appellant and his attorney appeared for trial, as did the city’s attorney. Appellant’s attorney advised the trial judge that he was unaware that the court’s local rules required him to furnish the court with a complete set of instructions two days before trial. In response, the trial judge announced he was remanding the matter to municipal court because counsel had failed to submit proper instructions. The judge’s order further reflects that “no objection to this remand is made by the appellant’s attorney.” Clearly, the appellant’s attorney was before the judge and had the opportunity to object and present his argument but failed to do so. To conclude otherwise, as does the majority, is unfathomable.

First, I should say that if the court could, under Arkansas precedent and statutory law, reach the merits of this case, I would have no problem in concluding that the trial judge erred. However, to reach the merits, this court must find that, at the time the trial court made its ruling or order, the appellant made (or sought to make) known the action the appellant desired the court to take or made an objection, giving his grounds, to the court’s action. See Ark. Code Ann. § 16-91-113(a)(3) (1987). From the record, appellant never raised or preserved the point he argues in this appeal. Nor does the record show that appellant had been in any way precluded from the opportunity to object or to present his argument to the trial court. See Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978).

The majority cites Weaver v. State, 296 Ark. 152, 752 S.W.2d 750 (1988), which is a similar case involving the same trial court and same local rule. As is the situation here, the attorney in Weaver failed to submit instructions in compliance with the local rule, and the judge remanded Weaver’s case. Two significant differences exist between Weaver and the present case. First, in Weaver, the appellant produced a transcript and abstract of the hearing which showed that Weaver’s attorney informed the trial judge that he did not submit instructions because the only matter in dispute was a factual one and that the city’s instructions were sufficient to cover the law. Second, after the attorney had advised the court regarding his position as to why he had not submitted instructions, the judge commenced calling the other cases on the court’s docket. The judge later returned to the Weaver case merely to announce that it would be remanded to municipal court because the attorney had not submitted instructions to the court. Nothing in the record reflected that the attorney was even in the court room when the judge made his announcement, but the record did show the judge immediately proceeded with other matters before the court.

As can be readily seen, the attorney in Weaver had made known to the trial court the action he desired the court to take and gave his reason why. Also, Weaver’s attorney was given no opportunity to reaffirm his position in the way of a formal objection since the judge, immediately after announcing his ruling to remand Weaver’s case, promptly moved to other matters then before the court.

The majority cannot gloss over its treatment of this case by claiming the appellant did not have an opportunity to object — the record reflects otherwise, and in fact, it shows he had no objection. Nor can the court’s decision be defended by saying that any objection to the judge would have been futile. Obviously, the suggestion that an objection would have been futile could be argued in any case where a judge makes a ruling and an attorney fails to say anything. Besides, this court has never recognized an “it would be futile” exception to the longstanding rule that arguments or objections must be raised below before they can be considered on appeal.

In conclusion, I will be the first to say that justice and the equities of this case were probably better served by this court reaching the case on its merits. But there are other cases where I could have just as easily said the same thing; nonetheless, this court chose not to reach the merits in those cases because an attorney failed to object or present an argument. As long as this court openly adheres to the principle that it will not consider matters on appeal that are not argued or raised below, the court should be consistent in applying that principle in every case regardless of the circumstances, the outcome or the court involved.

I would affirm.

Hays, J., joins in this dissent.

       The order remanded the case to the Conway Municipal Court, but the effect of such action was to dismiss the case from the circuit court’s docket.