text:
    Carlton JOHNSON v. STATE of Arkansas
    CR 97-978
    961 S.W.2d 764
    Supreme Court of Arkansas
    Opinion delivered February 12, 1998

      James P. Clouette, for appellant.

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

Appellant Carlton Johnson appeals the sentence he received for keeping a gambling house. He contends that the trial court mistakenly concluded that alternative sentencing, under the Arkansas Criminal Code, was not available for this offense. We agree with Johnson’s contention and remand this case for the sole purpose of allowing the trial court to consider alternative sentencing provided under the Criminal Code, Ark. Code Ann. §§ 5-4-301 — 5-4-311 (Repl. 1993).

Johnson, a first-time offender, pled guilty to keeping a gambling house in violation of Ark. Code Ann. § 5-66-103 (a) (Repl. 1993). While the trial court went on record to express a preference to impose probation, it interpreted the law to prohibit alternative sentencing and, reluctantly, sentenced Johnson to the minimum prison term. The court allowed Johnson to remain free on bond pending the outcome of this appeal.

The issue on appeal is whether the sentencing provision of the gambling-house statute is mandatory and exclusive of the alternative-sentencing provisions of the Criminal Code. Johnson contends that the alternative-sentencing provisions, permitting suspended sentence or probation, are applicable to his offense, even though the gambling-house statute has its own penal provision. He argues that, even if the gambling-house sentencing provision may have been mandatory at one time, the subsequent enactment of the Criminal Code provides an alternative-sentencing option for all offenses not explicitly excluded by statute. The State responds that the sentencing language of the gambling-house statute is mandatory and exclusive of the alternative-sentencing provisions. Johnson is correct, therefore we reverse and remand.

The gambling-house statute, § 5-66-103(a) (Repl. 1993) of the Arkansas Code, to which Johnson pled guilty, provides in relevant part as follows:

Every person who shall keep, conduct, or operate . . . any gambhng house or place where gambling is carried on . . . shall be deemed guilty of a felony and on conviction shall he confined in the Department of Correction for not less than one (Í) year nor more than three (3) years. (Emphasis added.)

As previously mentioned, the trial judge, at the time of sentencing, indicated a willingness to place Johnson on probation, but the judge expressed his belief that the gambling-house offense was an unclassified offense enacted in 1913, and was not covered by the alternative-sentencing provisions of the Criminal Code, which were enacted in 1975. See Ark. Code Ann. §§ 5-4-101 — 618 (Repl. 1993): Chapter 4 of the Criminal Code on Disposition of Offenders. Specifically, the State argues that while § 5-4-104(a) of the Code provides that “no defendant convicted of an offense shall be sentenced otherwise than in accordance with [Code provisions]”, the Publisher’s Notes following § 5-4-104 read, “provisions within acts possessing their own penal provisions will control.” In other words, because the gambling-house statute has its own penal language requiring confinement in the Department of Correction for not less than one year, the State submits the alternative-sentencing laws under the Criminal Code do not apply in Johnson’s case. The trial court agreed.

The gambling-house statute and its penal provision were previously before this court in the case of Reeder v. State, 248 Ark. 902, 455 S.W.2d 92 (1970), when the statute, containing the same language, was located at Ark. Stat. Ann. § 41-2001 (Repl. 1964). Reeder was convicted of operating a gambling house, and even though the statutory offense contained the mandatory “not less than one year” confinement language, the trial court fixed Reeder’s punishment at one year, but suspended it for a period of three years. On appeal, Reeder complained about the three-year suspension, but this court upheld the validity of the sentencing. In upholding Reeder’s suspended sentence, the Reeder court relied on and applied the suspension and probation provisions provided in Ark. Stat. Ann. § 43-2331 (Supp. 1969), the probation and parole statute.

The Criminal Code was enacted in 1975 after the Reeder decision, and the Code provided new alternative-sentencing procedures. Nonetheless, the sentencing and probation provisions in § 43-2331, later codified as Ark. Code Ann. § 16-93-401 (1987) (the probation and parole statute), were continued separately from the Criminal Code. As a consequence, § 16-93-401 and its suspension and probation provisions were still available, under Reeder, to the court when anyone was convicted and sentenced under the gambling-house law.

It was not until Act 586 of 1991 (the repealing statute) that the General Assembly specifically repealed § 16-93-401. The General Assembly did so to clarify Arkansas’s law regarding the suspension and probation of sentences. Section 2 of the repealing act incorporated its provisions into the Criminal Code, and Section 5 announced the General Assembly’s reasons for repealing § 16-93-401. Section 5 stated that § 16-93-401 was confusing, conflicting, and was also unnecessarily duplicative of Criminal Code provisions. In short, the General Assembly made it clear that after the repealing act’s passage, only the Criminal Code and its alternative-sentencing provisions would apply, instead of those suspension and probation provisions in § 16-93-401.

The State cites to the supplemental opinion on denial of rehearing in Lovell v. State, 283 Ark. 425, 434-434-C, 681 S.W.2d 395, 396 (1984) for the proposition that, when a statute contains a mandatory sentence, the sentence to imprisonment cannot be reduced or suspended. That decision is inapplicable here. In Lovell, we said that “[t]he drafters of the criminal code recognized that there may be statutes later enacted which have their own penal provisions, unaffected by the criminal code.” Id. at 434-B, 681 S.W.2d at 396. (Emphasis added.) In reaching its holding, the Lovell court related that the drafters of the 1975 Criminal Code recognized that there would be statutes later enacted which would have their own penal provisions, unaffected by the Code. In the present case, we are dealing with an earlier 1913 penal provision that this court held, in Reeder, was subject to suspension and probation laws that were in effect prior to and after enactment of the Criminal Code.

This determination is also consistent with the principle of statutory construction that legislative acts relating to the same subject or having the same purpose must be construed together and in harmony if possible. Reed v. State, 330 Ark. 645, 649, 957 S.W.2d 174, 176 (1997). Such statutes are said to be in pari materia “when they relate to the same person or thing, to the same class of persons or things, or have the same purpose or object.” 2B Norman J. Singer, Sutherland Statutory Construction § 51.03 (5th ed. 1992). In the case before us, we are presented with criminal statutes that were enacted at different times. In construing these statutes, we presume that when the general assembly passed the later act, it was well aware of the prior act. Reed, 330 Ark. at 649, 957 S.W.2d at 176.

In conclusion, the Criminal Code was originally enacted to eHminate or replace archaic and overlapping statutes, and to develop a uniform method of grading offenses. Brimer v. State, 295 Ark. 20, 27-28, 746 S.W.2d 370, 374 (1988) (citing John DiPippa, Suspending Imposition and Execution of Criminal Sentences: A Study of Judicial and Legislative Confusion, 10 U. Ark. Little Rock L.J. 367 (1987-88)). These purposes are evident in the plain language of the Code’s general provisions, in which the Code is made applicable to all offenses. See Ark. Code Ann. §§ 5-1-103(a), 5 — 1—103(b); 5-4-104(a). In this case, we conclude that the gambling-house statute and the Criminal Code can be read in harmony when one defines the term of imprisonment and the other permits the court to impose suspension or probation. For the reasons stated above, we reverse and remand this case for resentencing.

       Sentencing shall be in accordance with the statutes in effect at the time of the commission of the crime. State v. Galyean, 315 Ark. 699, 700, 870 S.W.2d 706, 707 (1994). Johnson committed the crime in 1995.


source: Caselaw Access Project

author: Ray Thornton, Justice.

license: Public Domain

text:
    Della Lou WOLFORD v. St. Paul FIRE & MARINE INSURANCE COMPANY
    97-385
    961 S.W.2d 743
    Supreme Court of Arkansas
    Opinion delivered February 12, 1998

      George Bailey, for appellant.

      Womack, Landis, Phelps, McNeill & McDaniel, by: Paul McNeill, for appellee.
   Ray Thornton, Justice.

Appellant, Mrs. Della Lou Wolford, brought this medical-malpractice action against her deceased husband’s physician, Dr. Nathan Strickland; White River Medical Center and its agents, servants, and employees; and St. Paul Fire and Marine Insurance Company. St. Paul was the liability insurance carrier for the medical facility and for Dr. Strickland. While litigation was pending, Dr. Strickland died. The trial court dismissed the claim against him with prejudice when appellant failed to file a motion for.substitution of parties within ninety days following the notice of death. The White River Medical Center was dismissed without prejudice, and the case proceeded to trial against St. Paul on the remaining issue of medical malpractice of the Medical Center’s nurses and staff. The trial court ordered a mistrial because of the relationship of a juror to a witness.

In preparation for a new trial, St. Paul made a motion in fimine to preclude appellant’s expert witness, Dr. Richard Williams, from testifying because he testified as to a national standard of care for nurses and did not demonstrate a familiarity with the standard of nursing care in Batesville, Arkansas, where the Medical Center was located. As Dr. Williams was the only expert-medical witness prepared to testify for appellant at the new trial, St. Paul orally requested that the court allow it to make a motion for summary judgment in the event that its motion in limine to suppress Dr. Williams’s testimony was granted. St. Paul argued that summary judgment would be appropriate because appellant would not have a medical expert available to testify in the event of Dr. Williams’s disqualification. The trial court granted both motions, and the case was dismissed.

Appellant brings this appeal from the circuit court’s decision. For reversal, appellant makes four separate allegations of error: (1) that the trial court erred either in refusing to grant her motion for substitution of the deceased surgeon’s estate as a party pursuant to Ark. R. Civ. P. 25(a)(1), or in refusing to extend her period of time under Ark. R. Civ. P. 6(b)(2) for filing the motion for substitution; (2) that the trial court erred in granting the motion to dismiss the claim against Dr. Strickland with prejudice; (3) that the trial court erred in refusing to grant her motion for voluntary dismissal of the claim against Dr. Strickland prior to submission of the case to the court; (4) that the trial court erred in its application of the law in striking the testimony of her only expert medical witness, Dr. Williams, and subsequently granting summary judgment.

We conclude that the trial court did abuse its discretion in determining that appellant’s proposed witness, Dr. Williams, was not qualified as an expert to testify as to the standard of nursing care applicable in 1992 in the area around Batesville, Arkansas, and therefore, summary judgment was not appropriate. We conclude that the trial court did not abuse its discretion in dismissing the action against Dr. Strickland because the motion for substitution of parties was not timely filed; however, in accordance with Ark. R. Civ. P. 41(b), we hold that the dismissal should have been without prejudice.

I. Substitution of Parties

First, appellant argues that the trial court’s refusal to grant either her motion for an extension of time or her motion for substitution constituted an abuse of its discretion. We disagree and affirm on this point.

A notice of fact of death was filed on January 12, 1995, informing appellant that Dr. Strickland had died on September 22, 1994. On May 3, 1995, Dr. Strickland’s counsel filed a motion to dismiss based on the fact that appellant had not filed a timely motion for substitution of parties. Dr. Strickland’s counsel alleged that the motion for substitution of parties should have been made within ninety days from the January 12 filing date, and no such motion had been filed. He also noted in the supporting brief that appellant had filed a notice of claim against the estate shortly after the notice of death, and therefore argued that lack of notice of the fact of death should not be an excuse.

On May 8, 1995, appellant filed a motion for substitution of parties, well outside of the ninety-day period provided by Ark. R. Civ. P. 25(a)(1). Appellant’s counsel stated in a supporting affidavit that he and defendants’ counsel had decided in a telephone conversation that they would choose a mutually convenient time to accomplish several changes “at one time” to make the parties proper. Dr. Strickland’s counsel filed his own affidavit, responding to this allegation by saying that, according to his billing records, this conversation took place prior to Dr. Strickland’s death and pertained to substituting parties for the medical facility and for the parties who were individual plaintiffs at the time. On May 16, 1995, appellant filed a supplemental motion for substitution of parties and motion for enlargement and extension of time pursuant to Ark. R. Civ. P. 6(b)(2).

On August 15, 1995, the trial court mailed a letter in which it set out its findings. In its letter, the trial court found that appellant did not file the motion for substitution of parties within the time period required under Ark. R. Civ. P. 25, and the court expressed its intention to grant Dr. Strickland’s motion to dismiss this case pursuant to Ark. R. Civ. P. 25.

In our review, we look first to our applicable rule of civil procedure. The pertinent portion of Ark. R. Civ. P. 25 reads as follows:

If a party dies and the claim is not thereby extinguished, the Court may order substitution of the proper parties. . . . Unless the motion for substitution is made not later than ninety (90) days after the death is suggested upon the record by the service upon the parties of a statement of the fact of death, the action may be dismissed as to the deceased party.

Ark. R. Civ. P. 25(a)(1) (emphasis added). It is not disputed by either party that the motion for substitution was made later than ninety days after appellant received notice of Dr. Strickland’s death.

Appellant argues correctly that the use of the word “may” in the rule connotes that dismissal is not mandatory. We have stated that “the word ‘may’ as used in [a] rule implies permissive or discretional, rather than mandatory, action, ...” Lovett v. State, 267 Ark. 912, 914, 591 S.W.2d 683, 684 (Ark. App. 1979) (citing Nathan v. State, 235 Ark. 704, 361 S.W.2d 637 (1962)). Here, likewise, the word “may” in the rule implies that dismissal is not mandatory; however, it is discretionary with the trial court. Accordingly, we cannot say that the trial court abused its discretion in acting expressly within the authority given to it under Rule 25.

Appellant argues in the alternative that the trial court should have granted her request for an enlargement or extension of time pursuant to Ark. R. Civ. P. 6(b). The applicable portion of that rule reads as follows:

Enlargement: When by these rules or by a notice given thereunder or by order of the court an act is required or allowed to be done at or within a specified time, the Court for cause shown may at any time in its discretion: ... (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of mistake, inadvertence, surprise, excusable neglect, or other just cause ....

Ark. R. Civ. P. 6(b)(2) (emphasis added).

In its letter ruling, the trial court said that both sides agreed that the conversation at issue, regarding “cleaning up” the parties and style of the case, occurred prior to the notice of fact of death. The trial court went on to state that the filing of the notice of fact of death should have prompted appellant’s counsel to ask appellee’s counsel “whether any such agreement was still in effect and why the Defendant Strickland had filed the Notice. No allegation is made that any agreement was made to extend the time for filing a motion to substitute the estate for the deceased defendant.”

While appellant’s counsel alleges that the intent of the conversation was to perform all the necessary style and party changes at one time, he does not contend that the conversation was meant as an agreement to extend the ninety-day period during which he was required to file a motion to substitute. We agree with the trial court that the notice of fact of death should have been appellant’s stimulus to request a clarification. Further, as noted above, the notice of fact of death did prompt appellant’s counsel to file a timely claim against Dr. Strickland’s estate.

We conclude that appellant’s argument does not allege that she was mistaken about the time during which she was required to respond or that the failure to file in a timely manner was the result of surprise, excusable neglect, or other just cause; therefore, we cannot say that the trial court abused its discretion in denying both appellant’s motion for substitution and her motion for enlargement or extension of time.

II. Dismissal with Prejudice

Appellant next argues that the trial court abused its discretion in dismissing the cause against defendant Strickland with prejudice. She asserts that Ark. R. Civ. P. 41(b) requires that the dismissal should have been a dismissal without prejudice. We agree, and modify the dismissal to be without prejudice.

After the trial court’s August 15, 1995, letter, appellant’s counsel sent a letter on August 18, stating that, if the dismissal were to be “with prejudice,” he wanted a chance to hold a hearing and to brief the issue first. Then, on August 23, after receiving a copy of appellee’s proposed order, appellant’s counsel sent another letter, formally objecting to the form of the proposed order and renewing his former requests.

On September 12, 1995, appellant filed a motion for voluntary dismissal as to defendant Strickland, pursuant to Ark. R. Civ. P. 41(a). In her brief supporting both this motion and her objection to the dismissal with prejudice, appellant argued that Rule 41(b) requires that the dismissal pursuant to Rule 25 should be without prejudice, and she also argued that her motion for voluntary dismissal without prejudice should be granted. On November 13, 1995, the trial court entered its order, finding that the dismissal as to Dr. Strickland should be granted with prejudice.

Rule 41 states, in pertinent part:

(b) Involuntary Dismissal. In any case in which there has been a failure of the appellant to comply with these rules or any order of court . . . , the court shall cause notice to be mailed to the attorneys of record . . . that the case will be dismissed for want of prosecution unless on a stated day application is made, upon a showing of good cause, to continue the case on the court’s docket. A dismissal under this subdivision is without prejudice to a future action by the appellant unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.

Ark. R. Civ. P. 41(b) (emphasis added).

Appellant cites us to three cases that are particularly instructive in applying this rule. In Professional Adjustment Bureau, Inc. v. Strong, 275 Ark. 249, 251, 629 S.W.2d 284, 284-85 (1982), the appellant argued that the first dismissal under Rule 41 may never be with prejudice. We determined that a trial court is not absolutely prohibited from dismissing a case with prejudice for want of prosecution in all circumstances. Id. However, we said that a court’s disposition of a case for lack of prosecution should ordinarily be without prejudice. Id. at 251, 629 S.W.2d at 285. In Strong, we distinguished that case from Gordon v. Wellman, 265 Ark. 914, 582 S.W.2d 22 (1979), and stated that unlike Gordon, where the case had been pending for thirteen years and dismissal with prejudice may have been warranted, a case involving onetime neglect did not warrant a dismissal with prejudice. Id.

Similarly, in Superior Seeds, Inc. v. Crain, 280 Ark. 142, 144, 655 S.W.2d 415, 416 (1983), the trial court had dismissed a case where the plaintiff twice disregarded the court’s order to prepare a necessary instruction. On appeal, we said that, although the trial court was well within its authority in dismissing the suit, “[w]e treat the dismissal as one without prejudice.” Id. (citing Ark. R. Civ. P. 41(b)).

In the third case, we took our foregoing rationale one step further. In Insurance from CNA v. Keene Corp., 310 Ark. 605, 609, 839 S.W.2d 199, 202 (1992), the facts showed that the litigation had been ongoing for six years at the time that the trial court gave one of the parties ten days to substitute itself as the real party in interest. When the party did not appropriately amend the complaint within the ten-day period, the trial court granted a motion to dismiss the case. Id. In Keene, we stated that “Rule 41(b) of the Arkansas Rules of Civil Procedure gives the trial court the authority to dismiss cases in which the ‘plaintiff has failed to comply . . . with any order of the court.’” Id. at 609, 839 S.W.2d at 202. Our standard of review of such a dismissal is whether the trial court abused its discretion. Id. We concluded that the dismissal was not arbitrary or an abuse of discretion, but we stated that “such dismissals are to be without prejudice” and modified the dismissal therein to be without prejudice. Id.

In the instant case, we conclude that the trial court’s decision to dismiss the case was not an abuse of discretion. However, as the foregoing cases illustrate, after several amendments to Rule 41, we have consistently decided that such dismissals be without prejudice. We therefore affirm the dismissal, but modify it to be without prejudice.

III. Voluntary Nonsuit

Because we modify the foregoing dismissal to be one without prejudice, it is not necessary to reach appellant’s argument that the trial court erred in not granting her motion for voluntary dismissal without prejudice.

IV. Qualification of an Expert Witness and Summary Judgment

In her last argument for reversal, appellant urges that the trial court erred in excluding Dr. Williams’s testimony and in subsequently granting summary judgment. We conclude that the trial court’s exclusion of Dr. Williams constituted an abuse of its discretion and that summary judgment was not appropriate.

In its third motion in limine, St. Paul claimed that Dr. Williams’s deposition testimony indicated that he was not qualified to testify because he was not familiar with the medical facility in Batesville, Arkansas, nor was he testifying based on the standard of care for nurses in 1992 at the same or similar locality. After a hearing on the motion, the trial court granted St. Paul’s motion in hmine to exclude Dr. Williams’s testimony and entered an order reflecting this decision. The trial court concurrently entered an order granting the St. Paul’s motion for summary judgment. The trial court found that St. Paul was entitled to judgment as a matter of law because both parties had stipulated that this was a case that required expert medical testimony and the testimony of appellant’s only expert witness had just been excluded.

The issue for which expert testimony was required is whether Mr. Wolford, now deceased, had received adequate care from the White River Medical Center’s nurses and staff. As her expert witness, appellant offered Dr. Williams, who had been a board-certified surgeon, had remained licensed in New York, and had been licensed to practice medicine for fifty-six years. Dr. Williams had practiced in Warsaw, a farm town in upper New York state. Warsaw was described as a similar locality to Batesville in terms of population, number of physicians, and patient drainage and referral. Also, the hospital, where he practiced and held many positions including chief of staff, was described as similar in size, bed capacity, and equipment to the White River Medical Center. He taught nurses for twenty-five years at a three-year accredited RN school, and he trained nurses for duties in the operating room. While Dr. Williams had not practiced for thirteen years, he never ceased his study of medicine and his license remained current. He had previously testified as a medical expert witness in twelve states, and had reviewed between five hundred and one thousand cases.

Our case law requires a plaintiff to present expert testimony to prove an action for medical injury when the asserted negligence does not he within the jury’s comprehension as a matter of common knowledge. Reagan v. City of Piggott, 305 Ark. 77, 80, 805 S.W.2d 636, 637-38 (1991). An expert need not be familiar with the practice in the particular locality, but must demonstrate a familiarity with “the standard of practice in a similar locality, either by his testimony or by other evidence showing the similarity of localities.” First Commercial Trust Co. v. Rank, 323 Ark. 390, 401, 915 S.W.2d 262, 267 (1996) (holding the trial court abused its discretion in excluding the testimony of an emergency-medicine physician who met Arkansas’s similar-locality rule). We look at geographical location, size, and character of the community; however, we base the similarity not on population or area, but on the similarity of the medical facilities, practices, and advantages. Id.

We have been presented with cases in which medical specialists from dissimilar fields have testified and stated therein that the physician must merely “exhibit knowledge of the subject.” Id. at 399, 915 S.W.2d at 266. We stated that “[w]here a duly licensed and practicing physician has gained knowledge of the standard of care applicable to a specialty in which he is not directly engaged but as to which he has an opinion based on education, experience, observation or association with that specialty, his opinion is competent.” Id.

Based on our case law, the foregoing evidence establishes an appropriate foundation that shows that Dr. Williams is familiar with the standard of practice in a locality (Warsaw) similar to Batesville. Although appellee argues that Dr. Williams’s reference to a “national” standard of care should be a basis for exclusion, the argument is without merit. Dr. Williams is not an attorney, and it is the court’s province to determine if an appropriate foundation has been made, showing Dr. Williams is familiar with the standard of practice in a locality such as Batesville. As seen from the evidence above, that foundation was shown.

In Courteau v. Dodd, 299 Ark. 380, 385, 773 S.W.2d 436, 439 (1989), this court, citing A.R.E. 702, held that, if there is a reasonable basis for saying a witness knows more of the subject at hand than a person of ordinary knowledge, his evidence is admissible. We have also stated that if an expert’s opinion is merely weak or questionable, that fact bears on the weight to be given the testimony, and not its admissibility. Ishie v. Kelley, 302 Ark. 112, 116, 788 S.W.2d 225, 226-27 (1990).

Here, Dr. Williams’s expert testimony touched on Alvie Wolford’s medical and physical condition while he was a patient in the Medical Center, and he opined the nursing staffs failure to provide proper care and attention to Mr. Wolford had contributed to his death. Dr. Williams averred Mr. Wolford had been a victim of fluid overload, and essentially drowned in his own juices. He said that, after the doctors started an IV in Mr. Wolford’s arm in the emergency room, the IV was never removed. Dr. Williams explained that Mr. Wolford was administered liquids by the gallon over many days, even though there were days when he could only get rid of one quart of urine. Mr. Wolford gained forty pounds from water intake. The doctor went into detail how the nurses’ alleged failure of care caused Mr. Wolford’s legs, arms, and face to swell, and how the fluid filled Mr. Wolford’s lungs and decreased the efficiency of his heart to pump blood. Dr. Williams concluded that several causes contributed to Mr. Wolford’s death — abscess, peritonitis, a hole in the intestine, sepsis, fluid overload — and all of these causes exhibit symptoms nurses should have recognized and reported.

The medical treatment administered (and not administered) to Mr. Wolford is clearly a matter outside a person’s ordinary knowledge, and in the circumstances surrounding Mr. Wolford’s case, a jury could obviously have benefited from hearing expert testimony. If the fact that Dr. Williams has curtailed hands-on surgery since 1979, or another factor, might be considered a weakness in his medical background, that weakness is a matter for the jury to weigh; it is not reason to exclude his testimony.

The determination of an expert witness’s qualification to testify is within the sound discretion of the trial court. First Commercial Trust Company v. Rank, 323 Ark. at 398, 915 S.W.2d at 266. However, we have stated that the exercise of this discretion is not absolute, and we will reverse where we find that the trial court has abused its discretion. Id. at 399, 915 S.W.2d at 266. We conclude that Dr. Williams possessed the required credentials and experience to testify in this case, and we hold that excluding Dr. Williams’s testimony constituted an abuse of the trial court’s discretion.

Because we hold that the trial court abused its discretion in excluding Dr. Williams’s expert testimony, we also conclude that St. Paul was not entitled to judgment as a matter of law. Our rule states that summary judgment should only be granted where there exists no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P. 56. Here, the testimony of Dr. Williams would have provided the requisite background to support a genuine issue of material fact as to whether the White River Medical Center’s nurses and staff provided Mr. Wolford with adequate medical treatment. The resolution of this issue should have been within the province of the jury.

Accordingly, we reverse the trial court’s decision granting summary judgment in favor of St. Paul, and we remand with instructions for the trial court to accept Dr. Williams as an expert witness in this case.

In sum, we affirm in part, as modified, and reverse and remand in part.


author: Per Curiam.

text:
    Phillip J. MILLIGAN v. CIRCUIT COURT of Crawford County
    97-1502
    959 S.W.2d 747
    Supreme Court of Arkansas
    Opinion delivered February 12, 1998

      Petitioner, pro se.
    No response.
   Per Curiam.

This is a petition for writ of prohibition filed by Phillip J. Milligan to prevent the Crawford County Circuit Court from exercising jurisdiction over an amended complaint in intervention filed by the Sexton Law Firm, P.A., and Sam Sexton, Jr. (Sexton). We deny the writ.

On May 9, 1996, the Crawford County Circuit Court granted Sexton’s motion to intervene in John Watson, Phyllis Watson, et al. v. G. Ray Baker Trucking, Inc., et al. (the Watson case), for the purpose of establishing an attorney’s lien over one-half of the attorney fees generated through Milligan’s representation of the Watsons. In July 1996, the Watsons received a settlement of $1,314,000, and on August 23, 1996, the Crawford County Circuit Court entered an order placing a sum of approximately $333,000, most of which was for attorney fees, in its court registry pending the resolution of litigation between Sexton and Milligan in Sebastian County Chancery Court. On September 17, 1996, the circuit court disbursed $30,000 to attorney John C. Everett, and on November 7, 1996, the circuit court disbursed one-half of the remaining money in the amount of $151,500 to Milligan for attorney fees.

In Sebastian County Chancery Court, Milligan prevailed against Sexton’s complaint. On June 30, 1997, this court issued an opinion (1) reversing directed verdicts in favor of Milligan on Sexton’s claims for breach of fiduciary duty and fraud, and (2) reversing a jury verdict in favor of Milligan on breach of contract and remanding the matter to Sebastian County Chancery Court. See Sexton Law Firm, P.A. v. Milligan, 329 Ark. 285, 948 S.W.2d 388 (1997).

Following our decision, Sexton filed an amended complaint in intervention in Crawford County Circuit Court on August 6, 1997, seeking once more the remaining $151,500 held in the court’s registry as his share of attorney fees in the Watson case. Sexton also prayed for judgment against Milligan in the amount of $1,223.20 for expenses advanced by the firm to Milligan that remained unpaid and additional attorney fees pursuant to Ark. Code Ann. § 16-22-308 (1987). On August 15, 1997, Milligan moved to dismiss the amended complaint in intervention on grounds of improper venue and further moved for Rule 11 sanctions, which were denied. Milligan’s petition for writ of prohibition was then filed in this court.

Prohibition is an extraordinary writ that will issue only when the trial court is wholly without jurisdiction. Boatmen’s Nat’l Bank v. Cole, 329 Ark. 209, 947 S.W.2d 362 (1997); Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996). However, this court has traditionally issued the writ in circumstances where venue is improper. Boatmen’s Nat’l Bank v. Cole, supra; Steve Standridge Ins., Inc. v. Langston, 321 Ark. 331, 900 S.W.2d 955 (1995); Prairie Implement Co. v. Circuit Court of Prairie County, 311 Ark. 200, 844 S.W.2d 299 (1992). In deciding whether prohibition will he, this court restricts its review to the pleadings. Boatmen’s Nat’l Bank v. Cole, supra; Wise Co. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (1993), reh’g denied, 315 Ark. 336-A, 869 S.W.2d 6 (1994).

Milligan argues in support of his petition that the amended complaint in intervention is not a complaint to enforce an attorney’s lien but rather a complaint seeking relief for breach of contract and breach of fiduciary duty. Citing us to Ark. Code Ann. § 16-60-116(a) (1987), Milligan contends that venue is improper because he neither resides nor was summoned in Crawford County. Sexton claims, on the other hand, that his complaint is one quasi in rem to determine the rights to the money in the registry of the Crawford County Circuit Court and, specifically, his rights to attorney fees.

We first note that in Sexton’s amended complaint in intervention, he prays for judgment against the balance of the attorney fees. We also note that the trial court granted the intervention by Sexton for the limited purpose of establishing an attorney’s lien. The parties, in addition, are in apparent agreement that the Crawford County Circuit Court is the proper court to enter orders disposing of these attorney fees. We agree.

The General Assembly has expressly provided for a determination of attorney fees in the court where the action was instituted:

(d) The court or commission before which an action was instituted, or in which an action may be pending at the time of settlement, compromise, or verdict, or in any chancery court of proper venue, upon the petition of the chent or attorney at law, shall determine and enforce the Hen created by this section.

Ark. Code Ann. § 16-22-304(d) (Repl. 1994). We interpret this provision to mean what it says, as this court has long recognized the jurisdiction of trial courts to determine and enforce attorney’s liens. See, e.g., Vaughan v. Hill, 154 Ark. 528, 242 S.W. 826 (1922). Accordingly, we have no doubt that Crawford County was the appropriate venue for the award of attorney fees, including Sexton’s claim to part of the attorney fees in connection with the Watson settlement.

Because Sexton is claiming his right to attorney fees against the money held in the registry of the Crawford County Circuit Court, we conclude that Crawford County is a proper venue for hearing Sexton’s amended complaint in intervention under § 16-22-304(d). This being the case, it is not necessary for us to delve into the question of whether fraud was appropriately pled in Sexton’s amended complaint.

Writ denied.


text:
    Linda STREET; Jesse Dewayne Wickliffe v. STATE of Arkansas
    CR 97-1; CR 96-108
    959 S.W.2d 747
    Supreme Court of Arkansas
    Opinion delivered February 12, 1998

      A. Wayne Davis, for appellants.
    No response.
   Per Curiam.

The procedural backgrounds in each of these matters are set forth in several opinions previously delivered by this court. See Street v. State, 331 Ark. 139, 959 S.W.2d 744 (1998) (per curiam); Street v. State, 331 Ark. 138, 957 S.W.2d 187 (1998) (per curiam); Street v. State, 330 Ark. 853, 956 S.W.2d 866 (1997) (per curiam); Wickliffe v. State, 330 Ark. 97, 952 S.W.2d 144 (1997) (per curiam). Attorney A. Wayne Davis, counsel for both Appellants, Linda Street and Jesse Dewayne Wickliffe, appeared for a hearing before this court on January 21, 1998, to show cause why he should not be held in contempt for failing to perfect the appeals in both cases and for his failure to appear before this court as scheduled on January 15, 1998.

During the hearing conducted on January 21, 1998, we accepted Mr. Davis’s guilty pleas for failing to perfect the two appeals, and we found him to be in direct contempt of this court for his failure to appear as previously scheduled. On both issues, however, we permitted Mr. Davis to submit an affidavit in mitigation, which was received by the clerk of this court on January 27, 1998. Pending the receipt of the affidavit, we took the matter under advisement.

Mr. Davis stated in his affidavit that he had been grossly negligent in failing to better manage the affairs of his office. He stated that he had been away from his office for two months in the latter part of 1996 because of surgery. He stated further that he had been arrested in August 1997 on criminal charges arising out of Pulaski County, which had consumed a great deal of his time. Despite these explanations, Mr. Davis accepted fuE responsibEity for fading to timely perfect the appeals for both Street and Wickliffe.

Based upon the foregoing, we hold that Mr. Davis is in contempt for failing to perfect both AppeEants’ appeals in a timely manner and we fine him $250 on each case. We further sentence Mr. Davis to five days in the Pulaski County jaE, with credit for five days having already been served by him. Although Mr. Davis has previously been referred to the Committee on Professional Conduct, a copy of this opinion wiE likewise be forwarded to the Committee.


text:
    Jimmy Don WOOTEN v. STATE of Arkansas
    CR 98-73
    958 S.W.2d 537
    Supreme Court of Arkansas
    Opinion delivered February 12, 1998

      James O. Clawson, for appellant.

      No response.
   Per Curiam.

Appellant Jimmy Don Wooten by his attorney, James O. Clawson, has filed a motion for rule on the clerk. The motion reflects that Appellant requested a hearing in the trial court on his Rule 37 petition, and that such request was denied. Clawson admits by motion that the notice of appeal was not timely filed due to a mistake on his part.

Because Clawson has assumed responsibility for the error, we treat the motion for rule on the clerk as a motion for belated appeal, and we grant it. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: W.H. “Dub” Arnold, Chief Justice.

text:
    NATIONAL STANDARD INSURANCE COMPANY v. Aubrey WESTBROOKS
    97-333
    962 S.W.2d 355
    Supreme Court of Arkansas
    Opinion delivered February 19, 1998

      Everett & Mars, by: David D. Stills, for appellant.

      Fred Caddell, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

Appellant National Standard Insurance Company appeals an order of the Crawford County Circuit Court assessing attorneys’ fees and a twelve-percent penalty for its failure to pay loss claims upon demand where the amount appellee Aubrey Westbrooks recovered at trial was not within twenty percent of the amount he demanded or sought in his suit as required by Ark Code Ann. § 23-27-208 (d) (Repl. 1992). We agree that the trial court erred in assessing statutory penalties and attorneys’ fees, and we reverse and remand.

Appellee’s Crawford County home was destroyed by fire on July 2, 1995. Appellant had issued a homeowners’ policy to appellee that covered loss by fire in the amounts of $77,900.00 on the dwelling and $3,500.00 for the contents. On November 6, 1995, appellee signed and forwarded to appellant a document entitled, “Sworn Statement in Proof of Loss,” wherein he claimed that the dwelling was a total fire loss and that the amount due him under the policy was $78,908.89, representing $77,900.00 for the dwelling and $1,508.09 for the contents, less a $500.00 deductible. On February 20, 1996, appellee filed a suit against appellant, claiming that while he had made a due demand for the above benefits, appellant had refused to tender the proceeds pursuant to the policy. In the prayer of his complaint, appellee sought $78,908.89, attorneys’ fees, prejudgment and postjudgment interest, and a twelve-percent penalty. In its answer, appellant admitted that appellee’s house was damaged by fire, but denied that the dwelling and personal property were a total loss.

The case was tried to a jury on September 19 and 20, 1996. Appellee’s “Sworn Statement in Proof of Loss” was presented to the jury as the parties’ Joint Exhibit No. 2, reflecting the amount claimed under the policy as $78,908.89. Before the case was submitted to the jury, the parties stated at a bench conference that, if the jury determined that appellee’s home was a total loss, they would stipulate as to the amount to which the appellee would be entitled.

The case was presented to the jury by way of three interrogatories. In answering the first interrogatory, the jury found that appellee’s home was not a total loss. Answering the second and third interrogatories, the jury determined that the actual cash value of appellee’s dwelling and its contents was $62,000.00 and $750.00, respectively. Thereafter, the trial court entered its judgment against appellant awarding appellee $62,750.00, representing the amount of the jury’s verdict. In addition to this amount and over appellant’s objection, the trial court also awarded appellee a twelve-percent penalty in the amount of $7,530.00, attorneys’ fees in the amount of $7,500.00, prejudgment interest, and costs.

The statute in question, Ark Code Ann § 23-79-208 (Repl. 1992), governs the damages and attorneys’ fees available on loss claims. The pertinent subsection of the statute, as amended by Act 349 of 1991, provides as follows:

(d) Recovery of less than the amount demanded by the person entitled to recover under policy shall not defeat the right to the twelve percent (12%) damages and attorneys’ fees provided for in this section if the amount recovered for the loss is within twenty percent (20%) of the amount demanded or which is sought in the suit. (Emphasis added.)

Prior to the 1991 amendment, in order to be entitled to the penalty and attorneys’ fees, the insured must have recovered the full amount that was demanded or sought in the suit. See Miller’s Mutual Ins. Co. v. Keith Smith Co., 284 Ark. 124, 680 S.W.2d (1984).

In its order awarding appellee attorneys’ fees and a twelve-percent penalty, the trial court found that the jury’s verdict was within eighty percent of the amount appellee demanded at trial. On appeal, appellant maintains that appellee was required to recover within twenty percent of the amount demanded or sought in the suit in order to recover the statutory penalty under § 23-79-208.

We have often stated our rules of statutory construction and interpretation. They include the following guidelines:

The first rule in interpreting a statute is to construe it just as it reads by giving words their ordinary and usually accepted meaning. Arkansas Vinegar Co. v. Ashby, 294 Ark. 412, 743 S.W.2d 789 (1988). . . .In interpreting a statute and attempting to construe legislative intent, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other
appropriate matters that throw light on the matter. Hanford Produce Co. v. Clemons, 242 Ark. 240, 412 S.W.2d 828 (1967).

Board of Trustees v. Stodola, 328 Ark. 194, 199-200, 942 S.W. 2d 255 (1997), quoting City of Ft. Smith v. Tate, 311 Ark. 405, 409-410, 844 S.W.2d 356 (1993). Particularly, we have held that § 23-79-208(d), being penal in nature, is strictly construed. Farm Mut. Auto Ins. Co. v. Thomas, 316 Ark. 345, 871 S.W.2d 571 (1994). The purpose of § 23-79-208 we have said, is to punish the unwarranted delaying tactics of insurance companies. Farm Bureau Mut. Ins. Co. v. David, 324 Ark. 387, 921 S.W.2d 930 (1996).

The statute at issue is straightforward. The plain wording of § 23-79-208(d) provides that attorneys’ fees and the twelve-percent penalty are authorized only if the insured’s recovery is within twenty percent of the amount demanded or sought in the suit. This court has previously interpreted the language “amount demanded or which is sought in the suit” as “the amount sued for.” Mutual Relief Assn. v. Poindexter, 178 Ark. 205, 10 S.W.2d 17 (1928). The policy behind denying the penalty and attorneys’ fees where the insured makes a demand for more than he is entitled to recover has been explained as follows:

It could never have been the purpose of the legislature to make the insurance company pay a penalty and attorneys’ fees for contesting a claim that they did not owe. Such an act would be unconstitutional. The companies have the right to resist the payment of a demand that they do not owe. When the plaintiff demands an excessive amount he is in the wrong. The penalty and attorneys’ fees is for the benefit of the one who is only seeking to recover, after demand, what is due him under the terms of his contract, and who is compelled to resort to the courts to obtain it.

Pacific Mut. Life Ins. Co. v. Carter, 92 Ark. 378, 388, 123 S.W. 384 (1909). In passing Act 349 of 1991, our legislature plainly stated that, to recover the twelve-percent penalty and attorneys’ fees, an insured must recover within twenty percent of the amount he demands or seeks in the suit. In this case, appellee demanded the sum of $78,908.89 in his complaint. Thus he would have had to recover $63,527.11 or greater to come within the twenty percent. As the jury’s verdict was $62,750.00, the appellee fell short of recovering within twenty percent of the amount he demanded.

In response, appellee submits two theories as to why the trial court’s award of attorneys’ fees and the twelve-percent penalty was proper. First, appellee, who rented the home in question, claims that, at the time he filed suit, appellant had paid loss of rents pursuant to policy provisions in the amount of $5,193.36 in rental income. After appellee filed his complaint, appellant paid the remaining balance of $2,596.64, totaling $7,790.00, or ten percent of the dwelling coverage as provided in the policy.

According to appellee, the case was somewhat unusual in its presentation to the jury, referring to a bench discussion prior to the case being submitted to the jury, at which the parties stated that, if the jury determined that appellee’s home was a total loss, they would stipulate as to the amount to which appellee would be entitled. Appellee claims that there was no dispute that, at trial, the maximum amount available to him in dwelling coverage was $70,110.00, representing the amount initially demanded in his complaint less rental payments received. Adding the amount demanded in contents damage, $1,508.89, appellee claims that the “real number” demanded was $71,618.89. Thus, appellee claims that the jury’s verdict of $62,750.00 was a recovery within twenty percent of the $71,618.89 figure. Alternatively, appellee claims that he recovered both the $62,740.00 jury’s verdict and $2,596.64 in rental payments he recovered after suit was filed, totaling $65,346.64, or an eighty-three-percent recovery of the $78,908.89 demanded in his complaint.

The problem with both of appellee’s theories is that he never amended his complaint to reflect the true amount he claimed was due him. Not only did he fail to amend his complaint, he submitted to the jury the amount he demanded in his initial complaint — $79,908.89 — by way of his “Sworn Statement in Proof of Loss.” While appellee could have made a new and lesser demand by amendment after he filed his suit, see R. J. “Bob” Jones Excavating Contr., Inc. v. Firemen’s Ins. Co., 324 Ark. 282, 920 S.W. 2d 483 (1996), he did not do so. See also Ark. R. Civ. P. 15 (allowing for the liberal amendment to pleadings when no prejudice to the parties would result). Significantly, there was no evidence before the jury that would allow it to consider that the rental payments had been made. Appellee contended that his dwelling was a total loss, but the jury disagreed, returning a verdict that was outside the twenty percent of the amount appellee demanded in the proof he presented.

Following the trial, appellee filed a “Statement of the Evidence,” purportedly under Rule 6(d) of the Arkansas Rules of Appellate Procedure — Civil, whereby he stated that, in off-the-record discussions with the trial court, the parties stipulated that the maximum amount in damages available to appellee under the dwelling coverage was $70,110.00 in the event the jury determined that the dwelling was a total loss. According to appellee, both parties acknowledged “the amount demanded” by him if “he were completely successful on the damage to the real property was in the amount of $70,100.00. Appellee did not request that the trial court rule on his “Statement of the Evidence,” as required by Rule 6. Thus, as there is no record of the in-chambers hearing, we cannot determine whether any hearing or stipulation took place. See, e.g., Houston v. Knoedl, 329 Ark. 91, 947 S.W. 2d 745 (1997).

Based on the foregoing, the order of the trial court assessing a penalty and attorneys’ fees under § 23-70-208 against appellant is reversed, and this cause is remanded for an appropriate order to be entered.


author: David Newbern, Justice.

text:
    Rheeta STECKER, M.D. v. FIRST COMMERCIAL TRUST COMPANY
    97-260
    962 S.W.2d 792
    Supreme Court of Arkansas
    Opinion delivered February 18, 1998

      Friday, Eldredge & Clark, by: Toma P. Jones, for appellant.

      Gary Eubanks & Associates, by: William Gary Holt and James Gerard Schulze, for appellee.
   David Newbern, Justice.

This is the second appeal concerning the liability of Dr. Rheeta Stecker for the death of her patient, sixteen-month-old Laura Fullbright. First Commercial Trust Company (“First Commercial”), as administrator of the child’s estate, sued Dr. Stecker for medical malpractice and for failure to report under the child-abuse-reporting statute, Ark. Code Ann. §§ 12-12-501 through 12-12-518 (Repl. 1995 and Supp. 1997). In addition to the action on behalf of the estate, First Commercial sued on behalf of several of Laura Fullbright’s relatives, individually. It was alleged that Dr. Stecker’s failure to report evidence of physical abuse of the child resulted in the child’s death. In addition to Dr. Stecker, Mary Ellen Robbins, the child’s mother, and Joseph Rank who lived with Ms. Robbins and her child and who was convicted of murdering the child, see Rank v. State, 318 Ark. 109, 883 S.W.2d 843 (1994), were named as defendants.

In the first trial, Ms. Robbins was found not liable. Mr. Rank was found liable for damages to Laura Fullbright’s half-brother, but no damages were awarded to the estate. Dr. Stecker was found not liable for civil penalties prescribed under the child-abuse-reporting statute, and she was awarded a directed verdict on the medical malpractice claim because the only medical expert witness sought to be presented by First Commercial was found not to be qualified to testify as to the standard of medical care concerning child abuse in Hot Springs. We reversed and remanded for a new trial on the medical malpractice claim, holding it was error to have excluded the testimony of Dr. Frederick Epstein, the expert medical witness whose testimony First Commercial sought to introduce on behalf of the estate. First Commercial Trust Co. v. Rank, 323 Ark. 390, 396, 915 S.W.2d 262, 264 (1996).

In the second trial, a jury verdict resulted in a judgment against Dr. Stecker. She argues three points on appeal. First, she contends the doctrine of law of the case precludes any recovery against her because the estate recovered no damages in the first trial. Second, she contends her motion for a directed verdict should have been granted because there was insufficient evidence that her failure to report the child’s condition resulted in the death. Finally, she argues her motion for a mistrial should have been granted because of improper closing argument by counsel for First Commercial. We affirm the judgment.

At the second trial, there was evidence from which the jury could have concluded the following. Dr. Stecker, a family practitioner, treated Laura Fullbright on several occasions prior to the child’s death which occurred on September 12, 1992. On June 12, 1992, Dr. Stecker saw Laura, who was 12 1/2 months old, for a “well baby check-up.” Laura was brought to Dr. Stecker by Ms. Robbins, a pharmacist, whom Dr. Stecker regarded as a friend and colleague. She noticed a visible angulation of one of the baby’s arms, and she pointed the problem out to Ms. Robbins and to Mr. Rank. An x-ray showed the fracture of two bones in the child’s left forearm. Ms. Robbins and Mr. Rank indicated that they did not know that there was a problem. Dr. Stecker became concerned about the possibility of neglect or abuse. Dr. Stecker referred Laura to Dr. Robert Olive, an orthopedist. After seeing the x-rays as well as the child and her mother, Dr. Olive wrote Dr. Stecker that he did not think that there was any evidence of neglect on the part of the parents.

The letter from Dr. Olive did not totally alleviate Dr. Stecker’s suspicions of possible abuse; however, she did not confront Ms. Robbins or Mr. Rank about her suspicions, contact the baby’s father, Jim Fullbright, about her suspicions, or report her suspicions to any law enforcement agency. Ms. Robbins did not tell Jim Fullbright about the broken arm because she knew that he would “raise a fuss about it.”

On July 9, Dr. Stecker again examined Laura. Her notes reflect that the family had observed that the child was “wobbly” and running into things. Dr. Stecker found that she was better and diagnosed the problem as ataxia or dizziness and concluded that the child had been drinking too much juice. However, she also recognized that the symptoms were consistent with other possibilities, including head trauma.

On July 21, Laura was brought to the clinic with both eyelids swollen, and Ms. Robbins reported that the bruises were a result of the child falling down several stairs. Dr. Stecker was not present and Dr. Stecker’s husband, Dr. Elton Stecker, saw the baby. Dr. Elton Stecker’s nurse recorded that the child had been nauseated the previous day and had vomited that morning. When she awoke, there was swelling on the right side of the head in the temple area and over the right eye.

On July 22, Dr. Stecker again saw Laura, and she read the record of the July 21 visit. At this time, the child’s eyelids were swollen, and Ms. Robbins reported that the child had fallen down several stairs. Ms. Robbins wondered if the swelling of the upper lids could be the result of an allergy or a spider bite, and she stated that Laura had had watery nasal discharge which she felt was due to an allergy. Dr. Stecker wondered why there were new falls when child had been seen in the clinic the day before. Dr. Stecker discussed the possibility of abuse with Ms. Robbins. Ms. Robbins was adamant that abuse was highly unlikely. She stated that her five-year-old son carried Laura around and that he might have dropped her. She also told Dr. Stecker that her boyfriend did not have a temper. Dr. Stecker again considered reporting her suspicions of child abuse to the authorities; however, she did not. She made a conscious decision that there was not enough evidence to put the family in jeopardy of an investigation.

In August, there was an adult guest in Ms. Robbins’s home, and nothing happened to the child while he was present. On September 12, 1991, Ms. Robbins returned home from work and found Laura, whom she had left in the care of Mr. Rank, unconscious. She took the child to St. Joseph’s Regional Medical Center in Hot Springs. Laura was transported to Arkansas Children’s Hospital in Little Rock, where she was later pronounced dead. The medical examiner determined that the cause of death was homicide.

Í. haw of the case

Dr. Stecker filed a pretrial motion to dismiss for lack of a real party in interest. She argued that the jury’s failure to award damages to the estate at the first trial constituted law of the case precluding it from seeking damages upon retrial.

Following the jury verdict, Dr. Stecker moved for judgment notwithstanding the verdict, or, in the alternative, a new trial on several grounds. In the motion, Dr. Stecker argued that the issue of the damages sustained by the estate of Laura Fullbright should not have been submitted to the jury because the verdict from the first trial which awarded the estate no damages was not appealed; thus, the verdict was the law of the case. The motion was denied.

Dr. Stecker, citing Alexander v. Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989), argues that the Trial Court erred in submitting the issue of damages to the jury because the estate failed to appeal from the first jury’s finding that it had suffered no damages; thus, it is contended, the jury’s finding became the law of the case. She further contends that because the damages for wrongful death of a minor as outlined in AMI 2216 are not dependent on the particular tortfeasor or the nature of the conduct which caused the death, those damages are the same whether the death is the result of intentional conduct, common-law negligence, or medical negligence.

In Alexander v. Chapman, supra, we recognized that “[t]he general rule is that, where the pleadings and issues are substantially the same, all questions which were actually presented or which could have been presented in the first appeal are barred in the second appeal.” See also McDonald’s Corporation v. Hawkins, 319 Ark. 1, 888 S.W.2d 649 (1994). The point here is that there could have been no damages issue in the first trial and appeal of the malpractice claim against Dr. Stecker. The jury was not given an opportunity to consider the issue because a verdict had been directed in Dr. Stecker’s favor. The rationale of the cited cases does not apply.

With respect to AMI 2216, we need only say that the instruction was meaningless in this case because the first jury had no occasion to consider damages resulting from the medical malpractice claim against Dr. Stecker.

2. Proximate cause

Arkansas Code Ann. § 16-114-206(a) (1987) provides:

In any action for medical injury, the plaintiff shall have the burden of proving:
(1) The degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality;
(2) That the medical care provider failed to act in accordance with that standard; and
(3) That as aproxímate result thereof, the injured person suffered injuries which would not otherwise have occurred.

(Emphasis added.)

Causation is ordinarily a fact question for the jury to decide. First Commercial Trust Co. v. Rank, supra. The law requires more than a mere possibility that certain injuries resulted from negligence; a reasonable probability must be established. Davis v. Kemp, 252 Ark. 925, 481 S.W.2d 712 (1972). A plaintiffs proof on the issue of causation must be more than speculation and conjecture. Hill v. Maxwell, 247 Ark. 811, 448 S.W.2d 9 (1969). It must be such that reasonable persons might conclude that it is more probable than not that an event was caused by the defendant. Id.

Proximate cause may, however, be shown from circumstantial evidence, and such evidence is sufficient to show proximate cause if the facts proved are of such a nature and are so connected and related to each other that the conclusion may be fairly inferred. Wheeler v. Bennett, 312 Ark. 411, 808 S.W.2d 769 (1991). The mere fact that other causes intervene between the original act of negligence and the injury for which recovery is sought is not sufficient to relieve the original actor of liability if the injury is the natural and probable consequence of the original negligent act or omission and is such as might reasonably have been foreseen as probable. State Farm Mut. Auto. Ins. Co. v. Pharr, 305 Ark. 459, 808 S.W.2d 769 (1991).

Dr. Lander Smith, a witness presented by Dr. Stecker, testified to his opinion that Dr. Stecker had not violated the standard of care required of a family physician in the circumstances presented. On cross-examination, however, he testified, in part, as follows:

No, sir, I am not an expert in child abuse. But it is correct that in my schooling as a family practitioner and as an emergency room physician I am taught about things to look for in child abuse. ... If I have an impression that if someone has abused a child, I certainly would report it. As to whether I would expect the abuser to back off under the bright light of an investigation, I would think so, while there is an investigation hanging over his head. That’s why you should report those, because it might save a child’s life. More likely than not, I would always hope it would.

Dr. Frederick Epstein, who was presented as First Commercial’s witness, testified on cross-examination that in his opinion, “Dr. Stecker should have called Health and Human Services and they would have called the father and everyone else acquainted with this child.”

Dr. Stecker argues that the Trial Court erred in denying her motion for a directed verdict because there is no substantial evidence .that her conduct was the proximate cause of the death of Laura Fullbright. Dr. Stecker argues that if Dr. Smith’s testimony amounts to sufficient evidence of causation, the Administrator has effectively shifted the burden of proof on this element of its cause of action to her. She contends that if it can be presumed that a report of suspected child abuse will more likely than not prevent harm to the victim, she who is allegedly negligent for faffing to recognize and report that abuse is put in the position of proving that making such a report would not have made a difference.

There is no presumption involved here. Dr. Epstein testified that Dr. Stecker should have called the Department of Human Services, which would then have notified the father and “everyone acquainted with this child.” Dr. Smith informed the jury that such a report could have saved the child’s life by exposing the abuser. That opinion was buttressed by the evidence that when there was an outside person in Ms. Robbins’s home, the abuse did not occur. Dr. Stecker had the opportunity to rebut that testimony and apparently failed to do so in the eyes of the jury. The issue was one of fact for the jury to decide.

3. Closing argument

In her third point on appeal, Dr. Stecker argues that prejudicial error occurred during First Commercial’s closing argument when First Commercial wove a “send a message” theme into the argument even though punitive damages were not at issue in the case. Early in First Commercial’s closing argument on behalf of Laura Fullbright’s estate, it asked the jury not to apply a “weak” or “watered down” standard of care. Counsel for Dr. Stecker objected on the ground that punitive damages had not been sought, and the argument was a “send a message” argument. The Trial Court responded that he would take no action “until it happens.” Later, First Commercial’s counsel on several occasions referred to protecting “the children” and to protecting “the Lauras of the world.” Dr. Stecker’s counsel moved for a mistrial, and the motion was denied.

It has indeed been held that an argument having a “send a message” to the community theme may be improper when punitive damages are not sought. See, e.g., Smith v. Courier, 531 S.W.2d 743 (Mo. 1976); Maerks v. Birchansky, 549 So.2d 199 (Fla. App. 1989). At first blush, the argument made on behalf of Laura Fullbright’s estate might seem to have had that as its theme. In response to that contention, however, First Commercial argues that its counsel was addressing the standard of care to be exercised by a physician in circumstances such as those with which Dr. Stecker was presented and not the matter of damages.

We agree with the contention of First Commercial that the opinions of Dr. Epstein and that of Dr. Smith were very much at odds concerning the duty of a physician to report suspected child abuse. Dr. Smith felt a physician should be more than fifty percent certain before making a report. Dr. Epstein opined that any suspicion should be reported so that an objective government agency could make a determination. It is at least plausible that the reference to “the children” had to do with the standard of care to be taken by physicians rather than with a “message” to them.

A mistrial is a drastic remedy that should only be used when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when fundamental fairness of the trial itself has been manifestly affected. Balentine v. Sparkman, 327 Ark. 180, 937 S.W.2d 647 (1997). The Trial Court has wide discretion in granting or denying a motion for mistrial, and absent an abuse the decision will not be disturbed. Id.

We hold that, viewing the closing argument in its entirety, the repeated references to protection of “the children” did not necessarily evidence a “send a message” theme when combined with the discussion of the standard of care and the other points made in the closing argument. See Beis v. Dias, 859 S.W.2d 835 (Mo. App. S.D. 1993); Derossett v. Alton and Southern Ry. Co., 850 S.W.2d 109 (Mo. App. E.D. 1993).

Affirmed.


author: Tom Glaze, Justice.

text:
    Clarence WHITWORTH v. Mary L. WHITWORTH (Strickland)
    97-575
    961 S.W.2d 768
    Supreme Court of Arkansas
    Opinion delivered February 19, 1998

      Phil Stratton, for appellant.

      Boyd Tackett, Jr., for appellee.
   Tom Glaze, Justice.

Clarence Whitworth brings this appeal from the lower court’s February 11, 1997 order, finding him in contempt for failing to pay (1) his former wife’s (now Mary L. Strickland) house payments in the amount of $5,436.00, (2) her one-half share of Whitworth’s business in the sum of $6,705.00, and (3) her reimbursement of medical insurance premiums in the amount of $1,454.00. The court ordered Whitworth incarcerated until he made the foregoing payments, but held his incarceration in abeyance for 60 days. Whitworth filed a notice of appeal before that 60-day period expired.

For reversal, Whitworth argues the payments found due Strickland were merely debts and not child support, and he claims that, under Article 2, § 16, of the Arkansas Constitution, he cannot be imprisoned for such debts. Whitworth also asserts that, even if the arrearages in house payments were in lieu of child support, he still should not be incarcerated because there was no evidence that he had the present ability to pay the amounts the trial court ordered paid. In addition, Whitworth argues that the trial court reduced the house and other payments to judgment, and under Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671 (1973), the trial court lost its power to enforce such judgments by contempt proceedings.

First, we mention that, although Whitworth has abstracted the essential part of the trial court’s contempt order from which he appeals, he did not make the parties’ 1990 divorce decree a part of the record, much less abstract it, on appeal. Nor did he favor us with a June 17, 1993 order which had previously been entered as a result of an earlier contempt proceeding between him and Strickland. This court has repeatedly held that all relevant orders entered by the trial judge are to be abstracted. Pulaski County Child Supp. Enforcement v. Norem, 328 Ark. 546, 944 S.W.2d 846 (1997); Davis v. Wingfield, 297 Ark. 57, 759 S.W.2d 219 (1988).

What is troublesome about not having the aforementioned decree and order is Whitworth’s claim that he is not subject to contempt for failure to pay the debts owed Strickland because those debts are simply civil debts that are enforceable at law. If, however, the debts ordered paid are ones in the nature of support or maintenance, Strickland could enforce such debt payments by contempt proceedings, assuming Whitworth had the ability to pay but had willfully refused to make such payments. See Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991); Barker v. Barker, 271 Ark. 956, 611 S.W.2d 787 (Ark. App. 1981).

Since we do not have the parties’ 1990 divorce decree or its directives before us, we are left only with testimony such as that given by Strickland, asserting Whitworth had been ordered to pay “shelter costs in lieu of child support.” However, Whitworth countered Strickland’s remarks at the hearing below with his counsel’s own comments and arguments. For example, counsel, when discussing the making of house payments, said, “there’s a decree, and it’s self-evident,” and later defense counsel related the house payments were “not in lieu of child support.” Whitworth’s counsel further argued below that Strickland had obtained money judgments against Whitworth and “she should stand in line with other creditors.” Strickland’s counsel further responded in disagreement with Whitworth by referring to paragraph 3 of the divorce decree, stating Whitworth would be responsible for making house payments until the youngest child reached eighteen years old. The trial court, too, referred purportedly to the divorce decree and subsequent June 1993 order when discussing the value of Whitworth’s business and Strickland’s ownership interest in it.

In sum, while the trial court and respective parties at the hearing below seemed to have a working knowledge and understanding of the parties’ earlier 1990 divorce decree and 1993 order, neither party has abstracted those orders for us to see and consider. In fact, Whitworth’s notice of appeal and designation of the record limited the appeal transcript to “All pleadings and orders filed on or after September 12, 1996, and of all proceedings from and after October 29, 1996.” As a consequence, we are unable to consider Whitworth’s arguments regarding whether his house or other payments under the parties’ divorce decree are enforceable as child- support obligations, as opposed to determining if these payments merely evidenced a property decision of the parties’ assets. Nor do we consider whether Strickland’s action should have been filed in a court of law rather than in equity, since we do not have the pleadings or decree to decide that issue.

Whitworth does make an alternative argument we can discuss, and in that argument, he assumes that, even if the payments in the parties’ agreement and decree were in the nature of child support, the evidence presented below failed to show he had the present ability to pay them. This being so, he asserts the trial court was unable to hold him in civil contempt for failing to make the payments. Whitworth relies in part on Godwin v. Godwin, 268 Ark. 364, 596 S.W.2d 695 (1980), where the court stated that imprisonment for disobedience of an order to pay a sum into the court, without finding the party was able to pay the sum, is imprisonment for debt in violation of Article II of the Arkansas Constitution.

While Whitworth’s abstract does include his and Strickland’s testimony bearing on Whitworth’s ability to pay, the trial court never made a finding on the issue, nor was it asked to do so. Instead, the trial court simply ordered Whitworth “incarcerated until such time as he purges himself of paying the aforementioned amounts.” Whitworth’s own testimony on this question proved problematical on the issue. For instance, Whit-worth said that he could make no payments because he earned only $320.00 (and netted $120.00) per week while working for a construction company owned by T. L. Fortenberry. Whitworth then said he had “sold” his own company’s backhoe for $9,000.00, and those proceeds went entirely to pay an IRS obligation. Later, however, he indicated that he had “borrowed” $9,000.00 to $15,000.00 from Fortenberry, and subsequently gave Fortenberry the backhoe because Whitworth could not pay off the loan. In any event, none of the monies Whitworth obtained, whether the amount was $9,000.00 or $15,000.00, went to pay any portion of the obligation that he owed Strickland under their decree.

Because credibility and demeanor are important factors in deciding this case, we remand, instructing the trial court to make its finding and ruling on Whitworth’s ability or lack of ability to pay in this matter. See Gould v. Gould, 308 Ark. 213, 823 S.W.2d 890 (1992). In remanding, the trial court may take additional evidence on the ability-to-pay issue, but the parties shall not be permitted to raise again those issues raised but not consummated in this appeal or introduce issues that could have been raised and litigated in this case.

       The Nooner case has been overruled by Gould v. Gould, 308 Ark. 213, 823 S.W.2d 890 (1992), to the extent Nooner held the court has no power to enforce a child-support arrearages judgment by contempt proceedings. See also Ark. Code Ann. § 9-14-233 (Supp. 1995).

       In reading Strickland’s testimony and the colloquy between the bench and counsel, it would appear a copy of the parties’ divorce decree and the 1993 order were being referenced, but these orders were not made a part of the record.