author: David Newbern, Justice.

text:
    COLUMBIA MUTUAL CASUALTY INSURANCE COMPANY v. Trehlan INGRAHAM
    94-1162
    896 S.W.2d 903
    Supreme Court of Arkansas
    Opinion delivered May 8, 1995

      Roy & Lambert, by: Jerry L. Love, for appellant.

      John W. May Law Office, by: John W. May, for appellee.
   David Newbern, Justice.

Trehlan Ingraham, the appellee, applied for casualty insurance to be provided by the appellant, Columbia Mutual Casualty Insurance Company (Columbia), for a residence he owned. He did so at the Rowe Insurance Agency in Farmington where he was assisted by Ms. Spears, an agency employee. The application form Mr. Ingraham signed included a 30-day binder. He gave Ms. Spears a check for the premium covering one year. Columbia rejected the application within the 30-day period and so informed the Rowe Agency which did not inform Mr. Ingraham of the rejection. Some 56 days after the application was executed the residence burned. The issues before the Trial Court were primarily whether the written binder agreement had been modified orally to extend coverage beyond the 30 days and whether Ms. Spears had authority to agree to modify the binder on behalf of Columbia. A jury awarded Mr. Ingraham $26,000, the amount for which the residence was insured. We agree with Columbia’s contention that its motion for directed verdict should have been granted.

Mr. Ingraham’s contention at the trial and now is that his conversation with Ms. Spears resulted in an oral modification of the written agreement shown on the application form provided to the Rowe Agency by Columbia. He testified Ms. Spears told him the dwelling would be insured the minute he walked out the agency door, and that “it was supposed to last for a year.” He testified Ms. Spears told him he would have to install gas heat with a thermostat instead of the wood-burning device then in place. Ms. Spears testified she was not surprised that Mr. Ingraham assumed the dwelling was covered for a year. She testified she “held herself out” as having the authority to bind Columbia to provide insurance until a policy was issued or rejected. She did not, however, testify that she told Mr. Ingraham that; nor did she tell him the binder was only for 30 days. She did say she “could have” told him her opinion that the binder was good beyond a 30-day period. Both testified they did not discuss the binder language, and Mr. Ingraham said he did not read it.

The question before us is not simply whether an oral modification was reached. We need not even reach that issue in view of our conclusion that the evidence was insufficient to show Ms. Spears had the authority to bind Columbia beyond the terms of the written application and binder.

In Dodds v. Hanover Ins. Co., 317 Ark. 563, 880 S.W.2d 311 (1994), we distinguished between a general insurance agent and a soliciting agent:

A general agent is ordinarily authorized to accept risks, to agree upon the terms of insurance contracts, to issue and renew policies, and to change or modify the terms of existing contracts. A soliciting agent is ordinarily authorized to sell insurance, to receive applications and forward them to the company or its general agent, to deliver policies when issued and to collect premiums. Holland v. Interstate Fire Ins. Co., 229 Ark. 491, 316 S.W.2d 707 (1958). In addition, a soliciting agent has no authority to agree upon the terms of the policies or to change or waive those terms, nor can his knowledge be imputed to the company he represents. Id. See also Continental Ins. Cos. v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978).

An oral agreement to insure will be enforced if made by a general agent. Commercial Standard Ins. Co. v. Moore, 237 Ark. 845, 376 S.W.2d 675 (1964). Counsel for Mr. Ingraham conceded in oral argument that he is not contending Ms. Spears was or worked for a general agent but that she, by virtue of having told Mr. Ingraham to change his heating system, and by her other actions, presented apparent authority to bind Columbia in excess of the written agreement. The only evidence whatsoever that Columbia had clothed Ms. Spears or her agency with such authority was her deposition testimony, apparently introduced by way of impeachment on cross-examination. She said someone at Columbia once told her that a binder was effective during the usual “turn-around period.” Ms. Spears testified the turn-around time was often in excess of 30 days. She could not remember the name of the Columbia employee who said a binder could last longer than 30 days.

Penny Moore, an underwriter working for Columbia, testified Columbia’s normal turn-around time from receipt of application until issuance of a policy or rejection of the application was two or possibly three weeks. In this case, it was nine days. She also testified that Columbia records showed no money was forwarded to Columbia with the application of Mr. Ingraham.

In Henry v. Gaines-Derden Enter., Inc., 314 Ark. 553, 863 Ark. 828, (1993) we reiterated the definition of apparent authority:

Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume or which he holds the agent out as possessing; such authority as he appears to have by reason of the actual authority which he has; such authority as a reasonably prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess. . . .

A statement that some unknown person at Columbia once told Ms. Spears that a binder remained good during the usual turn-around time hardly constitutes substantial evidence that Ms. Spears was clothed with apparent authority to extend the coverage period of a written binder-application agreement.

In Dixie Life & Acc. Ins. Co. v. Hamm, 233 Ark. 320, 344 S.W.2d 601 (1961), we quoted with approval the following language from earlier cases:

“A principal is not bound by the acts and declarations of an agent beyond the scope of his authority. A person dealing with an agent is bound to ascertain the nature and extent of his authority. No one has the right to trust to the mere presumption of authority, nor to the mere assumption of authority by the agent.”

Cf. General Cas. Co. of America v. State, 229 Ark. 485, 316 S.W.2d 704 (1958), in which we held that one dealing with an agent clothed with a broad power of attorney was not considered to be on notice of secret limitations placed on the agency by the principal.

Mr. Ingraham has presented nothing from which a jury could reasonably conclude Ms. Spears or the Rowe Agency had apparent authority, beyond that of a soliciting agent. Nothing was presented to show they had the authority, apparent or otherwise, to bind Columbia beyond the terms of the form it had provided the Rowe Agency for insurance applications.

Reversed and dismissed.


source: Caselaw Access Project

author:
David Newbern, Justice.
      Robert L. Brown, Justice,

license: Public Domain

text:
    Greta SOSEBEE v. COUNTY LINE SCHOOL DISTRICT
    94-318
    897 S.W.2d 556
    Supreme Court of Arkansas
    Opinion delivered May 8, 1995
    [Rehearing denied June 12, 1995.]

      Mitchell, Blackstock & Barnes, by: Clayton R. Blackstock, for appellant.

      Laser, Sharp, Mayes, Wilson, Bujford & Watts, P.A., by: Dan F. Bujford and Brian Allen Brown, for appellee.

      Brown, J., would grant rehearing.

   David Newbern, Justice.

This is a Teacher Fair Dismissal Act case. See Ark. Code Ann. §§ 6-17-1501 through 6-17-1510 (Repl. 1993). The Act provides for an appeal to circuit court of a school board’s decision to dismiss a nonprobationary teacher. It allows a circuit court to take “[additional testimony and evidence ... to show facts and circumstances showing that the termination or nonrenewal was lawful or unlawful.” § 6-17-1510(d). The main issue before us is whether the Act creates a special proceeding or one in which the Arkansas Rules of Civil Procedure apply. Ark. R. Civ. P. 81(a). We hold the Rules apply.

Greta Sosebee, the appellant, was a nonprobationary teacher, having been employed for eleven years by the appellee, County Line School District (the District). See § 6-17-1502(a)(2) and (b). On May 1, 1992, her teaching contract was renewed for the 1992-1993 school year. On May 22, 1992, the District Superintendent recommended that Ms. Sosebee’s 1992-1993 contract be terminated due to alleged absences and instances of tardiness. The School Board for the County Line School District held a hearing on June 25, 1992, and voted in favor of terminating the contract.

Section 6-17-1510(d) requires an appeal to circuit court of a school board decision be taken within 75 days of the date of written notice of the board’s action. On September 4, 1992, which was within the 75-day period, Ms. Sosebee appealed the decision to the Franklin Circuit Court. She claimed the District violated the Teacher Fair Dismissal Act, its own personnel policies, and her Fourteenth Amendment right to due process of law. Ms. Sosebee voluntarily nonsuited her case on January 13,1993. The Trial Court’s order was as follows: “Plaintiff has informed the Court she is nonsuiting this case and the case is, therefore, dismissed without prejudice.”

On October 12, 1993, Ms. Sosebee filed another notice of appeal which, unlike her initial notice, contained no mention of deprivation of constitutional rights. The District moved to dismiss, claiming the notice had not been filed within 75 days of the Board’s decision. The District argued the Act contained no provision which would allow refiling after a voluntary nonsuit and that Ark. R. Civ. P. 41(a) was inapplicable. On December 8, 1993, Ms. Sosebee filed an amended notice of appeal, this time including her constitutional claim. At a later time on that same date, the order granting dismissal, which had been signed days earlier, was filed. Ms. Sosebee then moved to set aside the dismissal, contending the court had not been aware of her amended notice.

Ms. Sosebee claims her case should not have been dismissed for three reasons; (1) Rule 41(a) permitted the dismissal without prejudice, (2) Ark. Code Ann. § 16-56-126 (1987) allows her to refile her case within one year, and (3) even if her appeal pursuant to the Act is barred, her due process claim should not have been dismissed because it was brought within the three years allowed by the statute of limitations applicable to such a claim. Ark. Code Ann. § 16-56-105 (1987). She is correct on the first two points. We discuss the third point having to do with constitutional claims only to the extent of pointing out that they were not mentioned in her second notice of appeal, were not brought to the attention of the circuit court, and are not before us as a part of that which was dismissed.

1. Special proceedings

Ms. Sosebee contends the Arkansas Rules of Civil Procedure, and thus Rule 41(a) in particular, apply to the case pursuant to Ark. R. Civ. P. 81. Rule 81(a) states:

Applicability in General. These rules shall apply to all civil proceedings cognizable in the circuit, chancery, and probate courts of this State except in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.

The Rules thus apply to a proceeding unless a statute, which creates a right, specifically provides for different procedure. Ms. Sosebee argues the right in question in this case is the right to sue for a breach of contract which is rooted in common law even though her contract was created pursuant to the Teacher Fair Dismissal Act. She also argues the Rules apply because, even if the Act were held to create a right, it does not specifically provide a procedure “different” from the nonsuit without prejudice procedure found in Rule 41(a).

Since the advent of our original Civil Code, there have been two types of proceedings in Arkansas law. One is a civil action; the other is a special proceeding. Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239 (1974). The Arkansas Rules of Civil Procedure apply to civil actions. Rule 2. A civil action is an ordinary proceeding in a court of justice by one party against another for the enforcement or protection of a private right or the redress or prevention of a private wrong. Id. It may also be brought for the recovery of a penalty or forfeiture. Rockafellow v. Rockafellow, 192 Ark. 563, 93 S.W.2d 321 (1936). All proceedings not covered by the definition of “civil action” are special proceedings. Garrett v. Andrews, 294 Ark. 160, 741 S.W.2d 257 (1987).

In Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), we held Ark. R. Civ. P. 3 superseded statutory provisions purporting to govern the procedure for commencing a medical malpractice action. In the process of reaching that decision it was necessary for us to consider whether the medical malpractice action had been made a “special proceeding” as that term is used in Rule 81(a).

An action brought pursuant to the Medical Malpractice Act of 1979, as amended, now codified at Ark. Code Ann. §§ 16-114-201 through 16-114-209 (1987 and Supp. 1993), was a much better candidate for “special proceeding” status than the Teacher Fair Dismissal Act. The Medical Malpractice Act provided not only the means of commencing the action, but it dealt with burden of proof, the means of alleging damages, regulation of expert witnesses, and costs in the event of “false and unreasonable pleadings.” In contrast, the Teacher Fair Dismissal Act only states a time limit for appealing to a circuit court which may then take evidence and decide whether a school board’s action was “lawful or unlawful.” No special rules are provided.

We held the medical malpractice action was not a special proceeding, however, because the basis of the action “did not originate as a right, remedy, or proceeding created legislatively; it had its origins at common law.” We pointed out that the action was recognized long before the enactment of the legislation in question and then said:

A Reporter’s Note to Rule 81(a) provides this commentary on the Rule 81(a) exception: “The exception would be those proceedings established by statute and the statute prescribes a different procedure.” That is precisely correct. The Rule 81 (a) exception is limited to special proceedings created exclusively by statute where a special procedure is appropriate and warranted. It was never the intention of this court to accede to the General Assembly on matters of civil procedure for civil actions.

Just as we observed roots of medical malpractice actions long antedating the statute in the Weidrick case, we observe very thick and long breach of contract roots extending from the Teacher Fair Dismissal Act. We said as much in Springdale Sch. Dist. v. Jameson, 274 Ark. 78, 621 S.W.2d 860 (1981). In that case, Michael Corso had unsuccessfully sought redress before the Springdale School Board pursuant to the Teacher Fair Dismissal Act for nonrenewal of his teaching contract. He filed a notice of appeal in circuit court in which he alleged that the Springdale School District violated the Teacher Fair Dismissal Act and the Arkansas Teachers’ Salary Law. The Springdale District moved to dismiss and, in the alternative, to transfer to chancery. Both motions were denied, and the Springdale District sought a writ of prohibition. We denied the writ on the ground that the Circuit Court had jurisdiction because the action was for “an alleged breach of a contract implied by law.” Although that was a misstatement, as the reference should have been to breach of a contract implied in fact, we most certainly found the action to be, as Ms. Sosebee describes it in this case, “rooted” in contract.

Before departing from this point, we refer to Wilson v. C & M Used Cars, 46 Ark. App. 281, 878 S.W.2d 427 (1994), which has been cited by the District in support of its position that the dismissal in this case was with prejudice. A municipal court awarded damages to Shirley Wilson in a breach of contract action. C & M Used Cars appealed to circuit court which dismissed the appeal for lack of prosecution. Later the court entered an order proclaiming that the dismissal had been without prejudice in accordance with Rule 41(b) and that the municipal court order “became invalid or set aside” by the order of dismissal. The Court of Appeals reversed and correctly held that the judgment of a municipal court remains effective on appeal to circuit court. Arkansas R. Inf. Ct. 9 provides for a supersedeas bond in such cases on appeal.

The Court of Appeals based its decision on Watson v. White, 217 Ark. 853, 233 S.W.2d 544 (1950), and Fowlkes v. Central Supply Co., 187 Ark. 201, 58 S.W.2d 922 (1933). In the Fowlkes case, Central Supply Co. sued Mr. Fowlkes in a justice of the peace court where judgment was rendered in favor of Mr. Fowlkes. Central Supply Co. perfected its appeal to circuit court and then declared it was taking a nonsuit without prejudice. It then refiled its suit in circuit court. Mr. Fowlkes pleaded res judicata, but his plea was overruled, and judgment was entered for Central Supply Co. On appeal we held the dismissal was with prejudice and the justice court judgment was entitled to res judicata status. We recognized the statutory right, now found in Rule 41, of a claimant to dismiss without prejudice in most circumstances but held it did not apply in appeals from justice courts. In the Watson case, we applied the same holding to dismissal of a counter claim.

The Wilson case, the Watson case, and the Fowlkes case all involved appeals from a lower court to a circuit court. All involved the issue of preservation of a lower court’s judgment in the face of an appeal which had been dismissed. The case now before us is about a very different sort of appeal. There was no court judgment of any sort on appeal to a circuit court. Rather, we have on appeal a decision by none other than one of the parties to the litigation, i.e., the County Line School District. There has been no prior adjudication of Ms. Sosebee’s claim. Although the circuit court may take into consideration the record of the administrative proceedings, it is apparent that a trial of the claim may ensue, with evidence presented by the parties. No doubt the Rules of Civil Procedure will have to be used for that purpose, just as they were apparently used as the bases of pleadings and discovery in the case now before us. The first adjudication between the parties was in the Franklin Circuit Court.

We are unwilling to say that, just because § 6-17-1510(d) refers to a nonprobationary teacher’s exclusive judicial remedy as an “appeal” to circuit court, it becomes a special proceeding. Using the terminology of Rule 81(a), we hold that the right being pursued by Ms. Sosebee was not created by the Teacher Fair Dismissal Act. While that Act provides administrative procedures for pursuit of a nonprobationary teacher’s breach of contract claim preceding an appeal to circuit court, once the matter is before a circuit court, no procedures are prescribed other than by the Arkansas Rules of Civil Procedure. The Rules apply.

2. Savings statute

From the decision that Rule 41(a) permitted the voluntary nonsuit without prejudice, it follows that § 16-56-126 allows the appeal to be refiled within one year. The Statute provides, in pertinent part:

If any action is commenced within the time respectively prescribed in this act, in 16-116-101 — 16-116-107, in 16-114-201 — 16-114-209, or in any other act, and the plaintiff therein suffers a nonsuit, or after a verdict for him the judgment is arrested, or after judgment for him the judgment is reversed on appeal or writ of error, the plaintiff may commence a new action within one (1) year after the nonsuit suffered or judgment arrested or reversed.

The District argues, without citation to authority, that § 16-56-126 is not applicable because Ms. Sosebee’s appeal to the circuit court is not an “action” as the term is used in the statute. That is reiteration of the special proceeding argument dealt with above.

The District also contends that the 75-day limit for appeals is not a statute of limitation but is a jurisdictional requirement and outside the scope of § 16-56-126, citing Searcy County v. Holder, 257 Ark. 435, 516 S.W.2d 901 (1974). There it was held that Sheriff Holder’s claims for expenses were barred because he failed to appeal a county court denial of the claims within six months as required by law.

Unlike that of Sheriff Holder, Ms. Sosebee’s initial appeal was timely.

3. Constitutional claims

Finally, Ms. Sosebee contends her action should not have been dismissed because her notice, of appeal also contained allegations that her rights to due process had been violated. As the applicable statute of limitation, § 16-56-105, allows three years for a constitutional claim, she contends her deprivation of constitutional rights complaint was erroneously dismissed because the 75-day notice of appeal requirement does not apply to such a claim and Rule 41(a) permits her to take a nonsuit of it without prejudice to refiling it.

Although, technically speaking, Ms. Sosebee amended her second notice of appeal to include her constitutional rights deprivation claim prior to the filing of the order of dismissal, she did not do so prior to the time the judge signed the order of dismissal. The constitutional claim in her first notice was nonsuited. There is no evidence whatsoever that the constitutional issue was brought to the Court’s attention prior to the order of dismissal being signed and filed of record. We do not reverse, a trial court for having failed to consider a matter which was not brought to his or her attention by the party seeking to have it considered. Bell v. Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994); City of Ft. Smith v. Driggers, 305 Ark. 409, 808 S.W.2d 748 (1991). We make no ruling on the viability of the constitutional claim at this point. We say only that it does not form a basis of any issue presently before us.

Reversed and remanded.

Special Justice Bill R. Holloway joins in this opinion.

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

Glaze, J., not participating.

Robert L. Brown, Justice,

dissenting. The opinion handed down today represents a major shift with far-reaching impact. For the first time, we have applied the Rules of Civil Procedure to appeals from school board actions on teacher dismissals. That runs directly counter to the express language of Ark. Code Ann. § 6-17-1510 (Repl. 1993). This is analogous to applying the Rules of Civil Procedure to judicial review of administrative decisions which we have refrained from doing in the past. See Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992); Whitlock v. G.P.W. Nursing Home, Inc., 283 Ark. 158, 672 S.W.2d 48 (1984). That, however, is the next logical step under the rationale of today’s opinion.

The statutory language at issue is this:

(d) The exclusive remedy for any nonprobationary teacher aggrieved by the decision made by the board shall be an appeal therefrom to the circuit court of the county in which the school district is located, within seventy-five (75) days of the date of written notice of the action of the board. Additional testimony and evidence may be introduced on appeal to show facts and circumstances showing that the termination or non-renewal was lawful or unlawful.

Ark. Code Ann. § 6-17-1510 (Repl. 1993). The clear ianguage is that these are appeals and that they must be filed within 75 days of notice of the board action.

The majority’s opinion would have it that a notice of appeal from school board action is an original civil action commenced in circuit court for breach of contract. It is not. Rule 2 of the Arkansas Rules of Civil Procedure refers to one form of action known as “civil action” filed in chancery or circuit court. Under our statutes, “civil action” is defined more precisely as “an ordinary proceeding in a court of justice by one (1) party against another for the enforcement or protection of a private right or the redress or prevention of a private wrong. A civil action may also be brought for the recovery of a penalty or forfeiture[.]” Ark. Code Ann. § 16-55-102(a)(2) (1987). An appeal is a different procedure as we all know. It represents a complaint to a higher tribunal to correct the injustice done or error committed by the inferior tribunal. Black’s Law Dictionary, p. 96 (6th Ed. 1990).

The effect of today’s decision is to rewrite the statute. “Appeal” now becomes “civil action for breach of contract.” The 75-day time frame is apparently eliminated altogether. It is replaced by the statute of limitations prescribed for civil actions by the General Assembly, as well as the Savings Statute (Ark. Code Ann. § 16-56-126 (1987)). This is not a case where a civil action — medical malpractice — is involved, and one of our rules of civil procedure supersedes a legislative act. See, e.g., Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992). Rather, in this case the majority opinion changes the teacher-appeal statute and applies the civil procedure rules to an administrative appeal.

Teacher appeals to circuit court are special proceedings expressly excepted from the Rules of Civil Procedure and have always been treated as such. Rule 81(a) states:

(a) Applicability in General. These rules shall apply to all civil proceedings cognizable in the circuit, chancery, and probate courts of this State except in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.

That is precisely what we have in the case before us — a statute creating a different proceeding. The fact that evidence may be introduced in these appeals does not convert them into original actions. Evidence may also be taken in circuit court concerning alleged procedural irregularities before an administrative agency in any administrative appeal under the Administrative Procedure Act. See Ark. Code Ann. § 25-15-212(g) (Repl. 1992). We certainly have not deemed judicial review of administrative actions to be original actions, as already indicated in this dissent. See Wright v. Arkansas State Plant Bd., supra; Whitlock v. G.P.W. Nursing Home, Inc., supra.

The majority’s attempt to distinguish the Court of Appeals case, Wilson v. C & M Used Cars, 46 Ark. App. 281, 878 S.W.2d 427 (1994), is not successful. That case clearly holds that Ark. R. Civ. P. 41(b) pertaining to nonsuits is inapplicable to appeals from municipal court to circuit court. The reasoning of the Court of Appeals was that Rule 41(b) did not apply to a continuation of the municipal court action but only to “original actions in circuit court.” 46 Ark. App. at 286, 878 S.W.2d at 429. An administrative appeal does not qualify.

In my judgment, both parties in this litigation will rue the day that civil procedure rules were applied to these matters because flexibility is lost, appeals will be delayed, and the proceedings by necessity will become more cumbersome. That inures to the benefit of neither the teacher nor the school district. Moreover, Ms. Sosebee has not lost her constitutional claim of deprivation of due process. She still has time to commence a civil action on this basis within three years from the board action. See, e.g., Casada v. Booneville School Dist. No. 65, 686 F. Supp. 730 (W.D. Ark. 1988).

There is a scene in Through the Looking-Glass where this colloquy occurs between Alice and Humpty Dumpty:

“When / use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more or less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”

I believe in this instance the language of § 16-17-1510(d) is clear. We should withstand the temptation to have an “appeal” mean an original “civil action.” I respectfully dissent.

Holt, C.J., joins.


author: Tom Glaze, Justice.

text:
    ARKANSAS OFFICE OF CHILD SUPPORT ENFORCEMENT v. Stanley HOUSE
    94-1178
    897 S.W.2d 565
    Supreme Court of Arkansas
    Opinion delivered May 8, 1995

      Henry, Walden & Halsey, for appellant.

      Hugh W. Harrison, Jr., for appellee.
   Tom Glaze, Justice.

On October 13, 1980, appellee Stanley House was ordered to pay $26 per week for support of his minor child pursuant to a divorce decree. On December 17, 1993, the custodial parent, proceeding through the appellant Arkansas Office of Child Support Enforcement (Office), filed a petition to increase child support payments and a petition for order to show cause. In the order to show cause filed March 14, 1994, the Office alleged that House was behind in his child support payments in the amount of $8,615.40. House responded by pleading the five-year statute of limitations under Ark. Code Ann. § 16-56-115 (1987) and stating the child support amount sought was barred. Citing Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992), House further contended that a more recent ten-year statute of limitations, Act 525 of 1989 [Ark. Code Ann. § 16-56-129 (Supp. 1993)], did not apply. House also claimed overpayment of $1,274.78 during the five-year period not barred by the statute of limitations.

Following a hearing, the chancellor entered his order increasing the support payments to $32 per week, and barring all arrearages prior to December 17, 1988. He limited the amount of arrearages in child support based upon the five-year statute of limitations, § 16-56-115, applied up to the date (Dec. 17, 1993) the Office filed its petition to show cause. The court further ordered that $1,237.20 in overpayments made subsequent to December 17, 1988, was to be credited against future weekly payments at the rate of $16 per week until the amount of overpayment was liquidated.

The Office appealed the lower court’s July 1, 1994 order, arguing the chancellor erred in applying the five-year limitation. Although not argued in the proceeding below, the Office now claims the chancellor should have applied Act 870 of 1991 [Ark. Code Ann. § 9-14-236 (Repl. 1993)]. The Office contends Act 870 somehow entitles it and the custodial parent to additional arrears because the Act provides for an “enlarged” statute of limitations. House argues that because the Office made no mention of Act 870 below, it is precluded from making the argument now on appeal. We agree. The rule is well-established that this court will not reverse on an issue not presented to the trial court. Hubbard v. Shores Group, Inc., 313 Ark. 498, 855 S.W.2d 924 (1993). We have also said that we will not consider arguments raised for the first time on appeal or where a ruling from the trial court has not been obtained. Mobley v. Harmon, 313 Ark. 361, 854 S.W.2d 348 (1993).

We point out that the Office not only failed to mention or argue Act 870 to the chancellor, it also made no argument stating why the five-year statute of limitations provided in § 16-56-115 should not have been applied to the October 13, 1980 child support order in issue. The Office’s counsel’s only remark made concerning the limitation issue raised by House was as follows: “I think the statute of limitations [defense counsel] is referring to is a normal five years . . . with regard to child support and that there’s different statutes passed that extend that. I think that the Court’s policy is that it goes back ten years, if I’m correct.” (Emphasis added.) Defense counsel responded, “No, it’s five.” The court agreed. Again, the Office urged no argument as to why the trial court should not apply the five-year limitation.

In conclusion, we note that, aside from its failure to preserve its argument below, the Office’s argument on appeal is convoluted and difficult to understand without speculating, at times, what the Office means — which we refuse to do. Suffice it to say, we think the Office suggests, by its argument, that Act 870 of 1991 supplants or perhaps repeals the five or ten-year statutes of limitations that have previously been utilized by Arkansas courts in child support arrearage situations. Certainly, Act 870 does not specifically amend or repeal Arkansas’s earlier limitation laws, §§ 16-56-115 and 16-56-129, applied in child support arrearage cases. Nonetheless, if this is part of the Office’s argument for reversal, that argument needed to be presented to the chancellor below so he could have ruled on the issue. Moreover, even if the Office’s position is that the General Assembly’s passage of Act 870 enlarged (or did away with) the earlier court’s limitation laws, the question still remains whether the arrears House owed had already been barred under the earlier limitation laws. As stated in Johnson, 308 Ark. 201, 823 S.W.2d 883, this court has long held that the General Assembly cannot expand a statute of limitations so as to revive an action already barred. Once again, the chancellor was never given the opportunity to address this issue below. Accordingly, because the Office’s arguments on appeal were not made or preserved below, we affirm the chancellor’s decision.


author: Donald L. Corbin, Justice.

text:
    Dwayne Edward STEPHEN v. STATE of Arkansas
    CR 94-1411
    898 S.W.2d 435
    Supreme Court of Arkansas
    Opinion delivered May 8, 1995
    [Rehearing denied June 12, 1995]

      Doug Norwood, for appellant.

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

Appellant, Dwayne Edward Stephen, appeals a judgment of the Washington County Circuit Court convicting him of driving while intoxicated, fining him $250.00 plus court costs, suspending his driver’s license for ninety days, and sentencing him to serve thirty days in jail (conditionally suspended) and to attend the Ozark Guidance Center. Jurisdiction of this case is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(3). Appellant asserts two points for reversal. We find no error and affirm.

FACTS

The facts in this case are not disputed. Arkansas State Police Officer Robert Gibson was dispatched at approximately 3:57 p.m. on October 30, 1993 to the scene of a one-vehicle accident near Spring Valley. Gibson arrived on the scene at 4:25 p.m. and discovered an unattended smashed vehicle overturned on State Highway 412, which he later testified was a “very busy road.” Gibson observed a half-full bottle of liquor in the vehicle. The vehicle’s driver, Gibson later testified, was on his way to the hospital.

Gibson called Arkansas State Police Officer Larry Boone and instructed him to go to the hospital and, if alcohol appeared to be involved, to collect a sample from the driver for blood alcohol testing. The blood alcohol chemical test report later showed that appellant’s blood sample was collected by Boone at 4:52 p.m. and contained 0.15% blood alcohol.

After clearing the highway accident scene, Gibson arrived at the hospital where he found appellant in bed being treated by a physician for injuries to his right arm. The physician told Gibson he could talk to appellant. In response to Gibson’s questions, appellant identified himself, and stated he was the driver and owner of the vehicle, and had been drinking prior to driving. Both Gibson and Boone later testified that appellant smelled of intoxicants at the hospital.

Gibson stated: “I then after I got my information, I advised him that I would be arresting him in the room at that particular time.” Gibson then “left out and let the doctor finish.” When the medical treatment was finished, the treating physician told Gibson that appellant needed to go home and rest. Gibson and appellant walked to Gibson’s vehicle where Gibson wrote out citations against appellant for DWI, driving left of center, and not wearing a seatbelt. Gibson then drove appellant home.

Appellant was convicted in the Springdale Municipal Court on January 14, 1994 of DWI, driving left of center and not wearing a seatbelt. He appealed to the Washington County Circuit Court, where, on April 21, 1994, a bench trial was held. Officers Gibson and Boone were the state’s only witnesses. Appellant’s blood alcohol test report was admitted into evidence without objection. The defense presented no evidence. The trial judge dismissed the driving left of center and no seatbelt charges for lack of proof, but found that appellant was guilty of DWI. The trial court’s judgment and sentence was filed on August 3, 1994. This appeal arises therefrom.

SUFFICIENCY OF EVIDENCE

Appellant challenges the sufficiency of the evidence and asserts the state did not prove he was the operator of the vehicle involved in the accident, or that his blood alcohol level at the time of the accident was in excess of the legal limit.

Appellant first argues that the only evidence that he was the operator of the vehicle was his pre-arrest statement to Gibson that he was the driver. Appellant characterizes this statement as an out-of-court confession which was insufficient to support his conviction unless accompanied by other proof that the offense was committed. Ark. Code Ann. § 16-89-111(d) (1987). The state responds that appellant’s statement did not amount to a confession and, thus, did not require corroboration. The state is correct.

We are relegated to the traditional meaning of the word “confession” as it is used in section 16-89-111(d), a provision which was added to our criminal code in 1868 without an emergency clause or other document descriptive of legislative intent. Bishop v. State, 294 Ark. 303, 742 S.W.2d 911 (1988). This court has stated “‘[a] confession is an admission of guilt as to the commission of a criminal act.’” Id. at 307, 742 S.W.2d at 914 (quoting Workman v. State, 294 Ark. 103, 589 S.W.2d 21 (1979)).

Appellant’s statement that he was the driver of the vehicle is not an admission of guilt as to the commission of the criminal act of DWI because that crime is defined as the operation or actual physical control of a motor vehicle by a person who is intoxicated or whose blood alcohol level at that time is 0.10% or more by weight as determined by chemical test. Ark. Code Ann. § 5-65-103 (Repl. 1993). The term “intoxicated,” for purposes of this crime, is defined as follows:

(1) “Intoxicated” means influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof, to such a degree that the driver’s reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians.

Ark. Code Ann. § 5-65-102 (Repl. 1993). Appellant’s statement did not constitute a confession of DWI because it contains no admission that appellant was intoxicated or that his blood alcohol level was in excess of the legal limit at the time of the accident. Appellant’s statement that he was the operator of the vehicle merely constituted an admission of one element of the offense of DWI, rather than a confession of the crime. Snyder v. City of DeWitt, 15 Ark. App. 277, 692 S.W.2d 273 (1985); see also Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985) (holding that appellant’s admission to a law enforcement officer, at the scene of appellant’s vehicle stuck in the highway median, that he had come from Jonesboro and was the only person around the vehicle was considered a confession of use and control of the vehicle, which, combined with other circumstantial evidence led to the logical conclusion that appellant was DWI). Even if appellant’s statement that he was the driver of the vehicle is combined with his pre-arrest statement to Gibson that he was drinking prior to driving the vehicle, there is no confession of DWI because there is still no admission of intoxication or excessive blood alcohol level as defined by our criminal code. Therefore corroboration was not required.

Appellant’s second challenge to the sufficiency of the evidence is his assertion that the only evidence that his blood alcohol level was 0.10% or more at the time of the accident was the blood alcohol test report which, he argues, was insufficient to sustain his conviction because no evidence was introduced to relate his blood alcohol level as tested to his blood alcohol level at the actual time of the accident. Therefore, appellant argues, his conviction should be reversed. We reject appellant’s argument because we hold substantial evidence existed for the trial court to find that appellant was guilty of DWI on the ground of intoxication.

The crime of DWI is committed whether the act is violated by a motorist who is intoxicated or by a motorist whose blood alcohol level is in excess of the legal limit; these two conditions are two different ways of proving a single violation. Yacono v. State, 285 Ark. 130, 685 S.W.2d 500 (1985). In deciding whether the evidence is substantial, the general rule is:

The evidence to support a conviction, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. [Citation omitted.] We will affirm the verdict of the trial court, if it is supported by substantial evidence, and circumstantial evidence may constitute substantial evidence. [Citation omitted.] To be sufficient to sustain a conviction, the circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence. [Citation omitted.]

Walker v. State, 313 Ark. 478, 481, 855 S.W.2d 932, 933 (1993) (quoting Igwe v. State, 312 Ark. 220, 849 S.W.2d 462 (1993)). In this case, the evidence and all reasonable inferences deducible therefrom are viewed in the light most favorable to the state as the party which is relying upon the evidence. Yacono, 285 Ark. 130, 685 S.W.2d 500.

Ark. Code Ann. § 5-65-206(a) (Repl. 1993), the statute governing presumption of intoxication on the basis of chemical analysis of the defendant’s blood, is silent in the situation where the test is taken more than two hours after the alleged offense or the test result reflects a blood alcohol content of 0.10% or more. Subsection (b) of that statute states that the provisions of subsection (a) are not to be construed as limiting the introduction of any other relevant evidence bearing upon the issue of whether the motorist was intoxicated.

In deciding whether evidence is substantial, appellate courts take notice of the unquestioned laws of nature. Yacono, 285 Ark. 130, 685 S.W.2d 500. Consistent with this principle, this court has repeatedly observed that blood alcohol content decreases with the passage of time. State v. Johnson, 317 Ark. 226, 876 S.W.2d 577 (1994); David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985); Elam v. State, 286 Ark. 174, 690 S.W.2d 352 (1985). In this case, it is undisputed that appellant’s blood alcohol test sample was collected approximately fifty-five minutes after Gibson was initially dispatched to the accident scene. Because appellant’s overturned vehicle was located in the middle of a busy highway, it is reasonable to infer that the accident was reported to the state police and that appellant was transported to the hospital shortly after the accident occurred. It is reasonable to infer that appellant did not consume alcohol while he was being transported from the accident scene to the hospital or while he was at the hospital. Therefore, it is reasonable to infer from the facts of this case that, at the time the alleged offense occurred, appellant’s blood alcohol level was higher than its reported post-accident level of 0.15%, in excess of the legal limit.

Proof of the motorist’s blood alcohol content is not necessary for a conviction of DWI on the ground of intoxication. Wilson v. State, 285 Ark. 257, 685 S.W.2d 811 (1985). However, proof by chemical test that the motorist’s blood alcohol content was in excess of the legal limit is admissible as evidence tending to prove intoxication. Elam, 286 Ark. 174, 690 S.W.2d 352; Yacono, 285 Ark. 130, 685 S.W.2d 500. In this case, the blood alcohol test report, coupled with the recited facts contained in the testimonies of Officers Gibson and Boone, constituted substantial evidence from which the trial court could find that appellant was intoxicated at the time of the accident.

AUTOMOBILE ACCIDENT REPORT PRIVILEGE

Secondly, appellant asserts his pre-arrest statements to Gibson constituted privileged information which should have been suppressed at trial. Appellant argues these statements were privileged because they were made in discharge of his statutory duty under Ark. Code Ann. § 27-53-202(a) (Repl. 1994) to report his traffic accident to the Arkansas State Police, and, as such, were precluded from use as evidence against him at trial under Ark. Code Ann. § 27-53-208(b)(l) (Repl. 1994).

Ark. Code Ann. §§ 27-53-201 to -209 (Repl. 1994) govern accident reports which are required to be filed by persons other than law enforcement officers. Section 27-53-202(a) requires the driver of a vehicle involved in an accident resulting in injury or death to any person or apparent property damage in excess of $50.00 to forward a written report of the accident to the Arkansas State Police within forty-eight hours. Section 27-53-208(b)(l) provides that no report shall be used as evidence in any resulting civil or criminal trial. Section 27-53-208(b)(l) is an example of a statute which grants the so-called “automobile accident report privilege.” See generally John A. Tarantino, Defending Drinking Drivers § 586 (2d ed. 1991).

Ark. Code Ann. §§ 27-53-301 to -306 (Repl. 1994) govern accident reports which are required to be filed by law enforcement officers. Sections 27-53-303(a) and (b)(2) required Gibson, as the investigating officer, to prepare and file a report of his investigation of appellant’s accident. Sections 27-53-301 to -306 contain no automobile accident report privilege provision.

It is undisputed that appellant filed no written report of his accident with the state police. The only written report of the accident was prepared and filed by Gibson. Appellant, however, asserts the statutory automobile accident report privilege barred Gibson’s testimony as to appellant’s pre-arrest statements because those statements were used by Gibson in the preparation of the report which was filed.

Appellant’s only authority for his argument is Norstrom v. State, 587 So. 2d 1148 (Fla. Dist. Ct. App. 1991), in which the Florida District Court of Appeal held the trial court erred in admitting the taped statement of motorist Norstrom, given while in police custody and after he had waived his Miranda rights, during the investigation of a vehicular homicide. The court of appeal ruled the statement inadmissible because it was made during the accident investigation and was privileged under Florida’s automobile accident report privilege provision, Fla. Stat. ch. 316.066 (1988). We find appellant’s reliance upon Norstrom misplaced. The court of appeal’s decision was subsequently quashed in part by the Florida Supreme Court which held that the automobile accident report privilege did not apply on the facts of that case, and remanded the case for consideration of other issues not relevant to this discussion. State v. Norstrom, 613 So.2d 437 (Fla. 1993), on remand, 616 So. 2d 592 (Fla. Dist. Ct. App. 1993).

Appellant argues then, without persuasive authority, that the automobile accident report privilege rendered inadmissible Gibson’s testimony as to appellant’s pre-arrest statements, and that the trial court’s ruling permitting the testimony was reversible error. Although this argument is apparently one of first impression in this state, it has been addressed by other jurisdictions. See John A. Tarantino, Using The Automobile Accident Report Privilege To Bar Police Officer Testimony, 4 DWI Journal 6 (Jan. 1989). The reported weight of authority, we have found, is that, in most criminal proceedings, testimony by police officers relating to admissions by drivers for the purpose of preparing automobile accident reports is admissible. See Randy R. Koenders, Annotation, Admissibility of Police Officer’s Testimony At State Trial Relating to Motorist’s Admissions Made In Or For Automobile Accident Report Required By Law, 46 A.L.R.4th 291, §§ 2[a]; 4[a] & [b] (1986 & Supp. 1994).

We find appellant’s argument is without merit. A plain reading of section 27-53-208(b)(l) shows the automobile accident report privilege is expressly extended only to the report itself. By its express terms, the statute does not shield testimony of the investigating officer as to that officer’s observations made in preparing his report, including statements made to the officer by the motorist. Other state courts interpreting identical or similar automobile accident report privilege statutes have likewise concluded the privilege does not bar the testimony of the investigating officer. See, e.g., Creary v. State, 663 P.2d 226 (Alaska Ct. App. 1983); Spradling v. State, 628 S.W.2d 123 (Tex. Ct. App. 1981). We also note with interest that, since the Norstrom case, the State of Florida has amended its automobile accident report privilege statute to specifically permit testimony of the investigating officer to the extent the motorist’s privilege against self-incrimination is not thereby violated. State v. Riley, 617 So. 2d 340 (Fla. Dist. Ct. App. 1993).

The fundamental concern addressed by those courts which have extended the automobile accident report privilege to bar testimony of the investigating officer is to protect against a violation of the reporting motorist’s federal constitutional right against self-incrimination under the Fifth Amendment. See, e.g., Riley, 617 So. 2d 340; People v. Gilbert, 154 N.W.2d 800 (Mich. Ct. App. 1967). In the instant case, appellant argues his statutory duty to report the accident to the state police was the reason he provided privileged information to Gibson. However, there is no evidence in the record showing appellant was aware of or was attempting to comply with his statutory duty to report the accident. There is no evidence that appellant believed he was compelled to answer Gibson’s investigatory pre-arrest questions. There is no evidence that Gibson coerced appellant’s statements, or indicated to appellant in any way that appellant was required to answer Gibson’s questions. At trial, appellant stated, through his counsel, that his pre-arrest statements to Gibson were not made in the context of a custodial interrogation. In addition, although section 27-53-201 subjects to statutory fine or suspension of license to drive any motorist who fails to render a required automobile accident report, we are aware of no such penalty for a motorist who refuses to answer the questions of the investigating officer. On this record, the evidence does not indicate that appellant’s statements were obtained in violation of his constitutional right against self-incrimination.

Our standard for reviewing the trial court’s ruling admitting the challenged testimony is abuse of discretion pursuant to A.R.E. Rule 103. McVay v. State, 312 Ark. 73, 847 S.W.2d 28 (1993). On this record, we find no abuse.

Appellant also argues on appeal that admission of Gibson’s testimony as to his pre-arrest statements violated his rights under the U.S. Const. amend. 4 and Ark. Const. art. 2, § 15. We do not address this argument which is raised for the first time on appeal. Aaron v. State, 319 Ark. 320, 891 S.W.2d 362 (1995).

The trial court’s judgment is affirmed.

      Under former law, a presumption that the motorist was under the influence of intoxicating liquor arose in cases where his blood alcohol test result was 0.10% or more. This presumption was deleted by Act 549 of 1983.

      Although section 27-53-208(b)(l) does not expressly refer to a written report, the statute plainly contemplates a writing, consistent with the provisions of sections 27-53-201 to -210. See, e.g., section 27-53-202(a) (requiring the driver to file a written automobile accident report with the state police); section 27-53-206 (requiring the state police to prepare and supply automobile accident report forms); section 27-53-209 (mandating public access to the automobile accident reports); section 27-53-210 (authorizing procedures for obtaining photostatic or written copies of automobile accident reports from the state police).


text:
    Dustin VICKERS v. STATE of ARKANSAS
    CR 94-1131
    898 S.W.2d 26
    Supreme Court of Arkansas
    Opinion delivered May 8, 1995

      J. Blake Hendrix, for appellant.

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

Appellant, Dustin Vickers, was convicted by a Pulaski County jury of first degree murder and sentenced to life imprisonment. This court affirmed the judgment of his conviction. Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993). Subsequent to the appeal, appellant filed a petition for post-conviction relief pursuant to A.R.Cr.P. Rule 37. The only claims presented in the petition which are relevant to this appeal are three collateral attacks on the sentence relating to a claim of ineffective assistance of counsel. See A.R.Cr.P. Rule 37.1(d). After conducting two hearings, the Pulaski County Circuit Court entered an order denying appellant’s petition for post-conviction relief. Jurisdiction of this appeal from the denial of post-conviction relief is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(5).

We consider appellant’s first and second points for reversal together, as they are so closely related. First, appellant contends his counsel was ineffective for failing to renew a motion to hold Dale Larque an accomplice as a matter of law. At the close of the state’s case at trial, appellant’s counsel moved to have Larque declared an accomplice as a matter of law. The trial court reserved its ruling on the motion and counsel never renewed the motion or obtained a ruling on it. Appellant’s second point is that his counsel was ineffective for withdrawing an accomplice instruction. Counsel tendered an accomplice instruction, but later withdrew it believing it was not applicable. On direct appeal, appellant raised the issue of Larque’s status as an accomplice. However, this court could not address the issue because the issue was not preserved for review. Vickers, 313 Ark. at 67, 852 S.W.2d at 789.

Appellant argues the evidence presented at his trial proves Larque was an accomplice as a matter of law. The significance of Larque’s status as an accomplice derives from Ark. Code Ann. § 16-89-111(e)(1) (1987), which provides that a defendant cannot be convicted of a felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the crime. Appellant argues that it is undisputed that he and Larque agreed to drive from their hometown of Stuttgart to Little Rock to purchase drugs. Since there was testimony showing Larque intended to use a gun to kill anyone who tried to rip them off, appellant’s argument continues, a natural and probable consequence of their agreement to purchase drugs was that someone might be killed, and Larque was therefore an accomplice to the murder. Appellant argues further that he was prejudiced because there was no evidence to corroborate Larque’s testimony as required by section 16-89-111(e)(1), and but for counsel’s failure to have Larque declared an accomplice, the jury, would have entertained reasonable doubt as to appellant’s gikilt of first degree murder.

The state contends it is not the testimony at trial that is relevant to this appeal, rather it is the testimony of appellant’s trial counsel at the Rule 37 hearing that we should consider. Contrary to the state’s assertion, we may consider the testimony given and evidence received at trial and abstracted in appellant’s brief because the entire trial transcript was admitted as an exhibit at the Rule 37 hearing. Although we have carefully considered the evidence presented at appellant’s trial, we do not repeat it here due to its length and because, for the reasons developed below, resolution of appellant’s claim of ineffective assistance of counsel does not require that we determine whether Larque was an accomplice as a matter of law.

Counsel, J.W. Green, Jr., testified at the Rule 37 hearing that he had practiced law for thirty years and had been a prosecuting attorney as well as public defender when he was retained by appellant. Counsel stated that in his early discussions with appellant, counsel eliminated self-defense as a possible defense theory due to the location of the victim’s gunshot wounds. In later discussions with appellant in which appellant denied committing the murder, counsel determined the defense should be a complete denial of any participation in the murder. Counsel stated he thought complete denial would be the best theory of defense because, even though only Larque and appellant were present when the murder occurred, he thought the physical evidence would corroborate Larque’s testimony. The state points out that appellant agreed to the defense of denial and chose to testify at trial. His trial testimony was wholly consistent with the defense of denial.

This court will reverse a trial court’s denial of post-conviction relief only if its findings are clearly erroneous or clearly against the preponderance of the evidence. Pettit v. State, 296 Ark. 423, 758 S.W.2d 1 (1988). This court summarized the standard of review applicable to ineffective assistance of counsel claims in Pogue v. State, 316 Ark. 428, 432-33, 872 S.W.2d 387, 389 (1994):

[C]laims of ineffective counsel . . . must be examined in light of the standard set in Strickland v. Washington, 466 U.S. 668 (1984). That standard provides a two-prong test that must be met: (1) that the deficient performance of counsel must have resulted in errors so serious that counsel was not functioning as “counsel” guaranteed by the Sixth Amendment, and (2) prejudice resulted which deprived the petitioner of a fair trial. Id. There is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance, and the petitioner alleging differently has the burden of overcoming that presumption. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). In assessing trial counsel’s performance, we make every effort to eliminate the distorting effects of hindsight. Burnett v. State, 310 Ark. 202, 832 S.W.2d 848 (1992).

The state contends that appellant’s argument amounts to second-guessing counsel’s trial strategy. This court has repeatedly held that matters of trial tactics and strategy, which can be matters of endless debate by experienced advocates, are not grounds for post-conviction relief. Monts v. State, 312 Ark. 547, 851 S.W.2d 432 (1993); see Pogue, 316 Ark. 428, 872 S.W.2d 387. We agree with the state that counsel’s decision not to have Larque declared an accomplice was one of strategy, not one of ineffectiveness. Counsel testified he believed that the physical evidence would corroborate Larque’s testimony and that appellant himself completely denied participating in the murder. With only Larque and appellant present, and suicide ruled out due to the victim’s wounds, we cannot say counsel’s decisions not to have Larque declared an accomplice and not to have the jury so instructed were anything but tactical, and therefore incapable of analysis as effective or ineffective. Moreover, counsel’s decisions were entirely consistent with the information his client, appellant, had given him. Appellant assured his counsel he did not participate in the murder. To have Larque declared an accomplice would require an admission of some participation on appellant’s part and would thus be entirely inconsistent with the defense of complete denial. Appellant cannot have it both ways. Appellant cannot tell his counsel he did not participate in the murder and then have his counsel declared ineffective for failing to present a defense theory entirely inconsistent with the denial, for that result would be akin to the doctrine of invited error. This court has previously held that the failure to defend a criminal charge on the basis of inconsistent defenses normally is not evidence of ineffective counsel. Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1983). Counsel’s actions are presumed to be within the wide range of reasonable and professional assistance, Pogue, 316 Ark. 428, 872 S.W.2d 387, and appellant has fallen woefully short of carrying his burden to prove otherwise.

Merely for the sake of argument, we observe that, even if we make the assumption that the theory of defense presented on the facts of this case was erroneous or amounted to ineffective assistance, appellant cannot demonstrate prejudice, the second prong of the test for ineffective assistance of counsel. Id. The record clearly supports counsel’s determination that there was indeed other evidence to corroborate Larque’s testimony. Larque testified that appellant drove them both to Little Rock in a family member’s Nissan pick-up truck, where they picked up the victim, Kenneth Jackson, and continued to drive around Little Rock looking for drugs to buy. According to Larque, appellant drove down Pratt Road and stopped at a building, where appellant and Jackson exited the truck. Larque testified that he had just exited the truck when he heard a gunshot; he then saw appellant standing over the victim’s body and saw appellant fire a second shot. The physical evidence showed that footprints at the scene indicated appellant exited his truck, walked behind the truck to the victim’s body, and returned to the truck. Only one footprint was associated with Larque; it was found on the right side of the truck, within two to three feet of the victim’s tracks. The medical examiner testified the victim was shot twice in the head. The first shot was from a distance of eighteen inches to four feet and from an angle higher than the victim’s head. The second shot was fired from very close or point blank range. Thus, even assuming Larque had been declared an accomplice, there was other substantial evidence from which the jury could have found corroboration of Larque’s testimony. Therefore, appellant has not demonstrated any prejudice from his counsel’s failure to have Larque declared an accomplice, or from counsel’s withdrawal of the accomplice instruction.

Appellant’s third argument for reversal is that counsel was ineffective for withdrawing instructions on the lesser included offenses of second-degree murder and manslaughter. As the state contends, this court effectively answered this argument on direct appeal when we held that, because appellant’s defense was complete denial, there was no rational basis for giving instructions on the lesser included offenses. Vickers, 313 Ark. at 68, 852 S.W.2d at 789-90. Since we have determined in the instant appeal that counsel’s decision to present the defense of complete denial was entirely within the range of reasonable professional assistance, we find his decision not to pursue the instructions on lesser included offenses was likewise entirely reasonable and consistent with effective assistance. In fact, as we stated on direct appeal, the instructions were simply not available given the particular defense presented. Id.

This appeal is wholly without merit and the judgment denying post-conviction relief is affirmed.


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

text:
    CITY OF LITTLE ROCK v. Kevin Scott CAMERON
    94-1334
    897 S.W.2d 562
    Supreme Court of Arkansas
    Opinion delivered May 8, 1995

      Office of the City Attorney, by: Thomas M. Carpenter and Anthony W. Black, for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Sarah Pres-son and Julia Busfield, for appellee.
   Robert L. Brown, Justice.

This case involves an appeal from a grant of a directed verdict in favor of the appellee, Kevin Scott Cameron. The City of Little Rock, as appellant, contends that the trial court erred in its ruling. We do not agree and affirm.

At approximately midnight on March 5, 1992, Cameron left the Bobbisox Lounge at the Holiday Inn by the Little Rock Airport. He had been drinking alcoholic beverages. He went to a Waffle House across the street and left there at about 2:00 a.m. He drove into downtown Little Rock. It was raining. At the intersection of West Markham and McKinley, his car struck a traffic signal pole and destroyed it. The City sued Cameron for negligence and for damages in the amount of $4,562.70 for the destruction of the pole.

At the resulting jury trial, the City called Officer Linda Barron as a witness. Officer Barron testified that she was the investigating officer and that two vehicles were involved in the accident: Cameron’s 1987 Ford Taurus and a 1989 G.M.C. pickup driven by Othlea Patterson. Officer Barron testified that she smelled alcohol on Cameron’s breath. She stated that Cameron told her that the pickup truck had entered his lane and that he had swerved to miss it and struck the pole. She noted that Cameron’s vehicle had hit the pickup but stated that Cameron was unaware of this at the time. No citations were issued to the driver of either vehicle, and the police officer’s accident report noted no contributing causes for the wreck.

Officer Roy Howard of the Little Rock Police Department testified that he administered a portable breathalyzer test to Cameron at the scene and that Cameron tested for a blood/alcohol level of .05 percent. He stated that he did not believe that Cameron was “impaired to an extreme point,” though he did state he believed that drinking alcoholic beverages does impair one’s ability to drive.

The City rested its case after providing proof of its damages. Cameron moved for a directed verdict, and it was granted.

The City urges on appeal that the trial court erred in granting Cameron’s motion for directed verdict. In determining the correctness of the trial court’s ruling, we view the evidence in the light most favorable to the party against whom the verdict is sought and give it the highest probative value, taking into account all reasonable inferences deducible from it. Bice v. Hartford Acc. & Indem. Co., 300 Ark. 122, 777 S.W.2d 213 (1989). A motion for directed verdict should be granted only if the evidence so viewed would be so insubstantial as to require a jury verdict for the party to be set aside. Id.; Campbell Soup Co. v. Gates, 319 Ark. 54, 889 S.W.2d 756 (1994). Evidence is insubstantial when it is not of sufficient force or character to compel a conclusion one way or the other or if it does not force a conclusion to pass beyond suspicion or conjecture. See Allred v. Demuth, 319 Ark. 62, 890 S.W.2d 578 (1994); Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).

In the case before us, the trial court found that there was insufficient evidence to support a claim of negligence. To establish a prima facie case in tort, a plaintiff must show that damages were sustained, that the defendant was negligent, and that such negligence was a proximate cause of the damages. Arkansas Kraft v. Cottrell, 313 Ark. 465, 855 S.W.2d 333 (1993). We reiterated our definition of negligence in Cottrell:

Negligence is the failure to do something which a reasonably careful person would do. A negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992).

313 Ark. at 470, 855 S.W.2d at 337. While a party can establish negligence by direct or circumstantial evidence, he cannot rely upon inferences based on conjecture or speculation. Id.

The mere fact that Cameron had been drinking alcoholic beverages is not sufficient evidence of negligence, standing alone, for this claim, to withstand a directed verdict. Cameron was not legally intoxicated based on his percentage of blood/alcohol content. See Ark. Code Ann. § 5-65-103(b) (Repl. 1994). But even had he been intoxicated, a distinguished treatise on torts concludes that the fact of intoxication is not negligence in itself, but it must be shown to have caused the actor’s behavior to have deviated from that of a reasonable person and to have caused the plaintiff’s injuries. See Prosser and Keaton on Torts § 32, pp. 178-179 (5th Ed. 1984); see also Restatement (Second) of Torts § 283C, Comment D. In this vein, we have stated that voluntary intoxication may be a factor to be considered by the trier of fact in determining negligence. Jernigan v. Cash, 298 Ark. 347, 767 S.W.2d 517 (1989).

We can readily agree with Officer Howard that drinking alcoholic beverages may impair one’s ability to drive. Here, though, there was no evidence that Cameron was intoxicated or otherwise impaired at the time of the accident or that his liquor consumption either evidenced a lack of reasonable care on Cameron’s part or caused the wreck in any way. In sum, we agree that the City’s proof does not give rise to an inference of negligence but only to conjecture and speculation. See Sanford v. Ziegler, 312 Ark. 514, 851 S.W.2d 418 (1993). The trial court did not err in granting the directed verdict.

Affirmed.

Glaze and Corbin, JJ., dissent.

Donald L. Corbin, Justice,

dissenting. I dissent.

The case should have been submitted to the jury for decision. The facts of the appellee’s drinking mixed with a collision with another vehicle he did not know he hit and his collision with a traffic light pole should have been submitted to the jury to resolve whether he was negligent in the operation of his vehicle. One does not have to be intoxicated under a legal definition of 0.10% before having his mental and reaction time slowed down by the drink. See Stephens v. State, 320 Ark. 426, 898 S.W.2d 435 (1995). When all of this is coupled with rain slicked streets, it would be a proper issue for a jury to draw upon their individual experiences to determine if, under all of these conditions, negligence existed. I would reverse and remand for trial.

Glaze, J., joins in this dissent.


author: Robert L. Brown, Justice.

text:
    Christine M. JONES v. Jerry A. JONES
    94-1088
    898 S.W.2d 23
    Supreme Court of Arkansas
    Opinion delivered May 8, 1995

      The Perroni Law Firm, P.A., by: Samuel A. Perroni and J. Nicole Graham, for appellant.

      Helen Rice Grinder, for appellee.
   Robert L. Brown, Justice.

This case involves the parties’ minor son, Cameron Jones, and the chancellor’s dismissal of a contempt petition against appellee Jerry A. Jones for his failure to release Cameron on a certain date to appellant Christine Jones for visitation purposes. It further involves the constitutionality of alleged local rules employed by the chancellor and legal fees assessed against appellant Christine Jones for filing the contempt petition.

The parties were married in 1981 and divorced on November 13, 1990. The chancellor granted custody of Cameron to Christine Jones as part of the divorce. On December 14, 1992, a temporary change of custody was granted to Jerry Jones, and on March 7, 1994, the custody grant was made permanent with visitation rights provided to Christine Jones. The March 7, 1994 order expressly states that visitation shall be in accordance with the Handbook for Domestic Relations Litigants used by the Twentieth Chancery District of Arkansas which includes Faulkner, Van Burén, and Searcy Counties. The visitation language in the March 7, 1994 order that stands at the core of this lawsuit reads: “(d) the [appellant] shall have summer visitation with the minor child beginning on the third Sunday following the last day the child is required to attend school of the spring term. . . .” This language is taken word-for-word from the Domestic Relations Handbook.

During the 1993/94 school year, Cameron as a four-year-old was not required by law to attend public schools. He attended a preschool in Conway named the UCA Child Study Center, and the last day of that school was May 13, 1994. On May 31, 1994, Christine Jones filed a motion for contempt against Jerry Jones for his violation of the March 7, 1994 order due to his refusal to release Cameron to her on May 29, 1994, which was the third Sunday following the last day of Cameron’s preschool at the UCA Child Study Center. Jerry Jones responded that the last day of the Conway public schools was the operable date to be used because Cameron was not required to attend school and that date meant the third Sunday fell on June 12, 1994.

Following a hearing on Christine Jones’s contempt motion on June 15, 1994, the chancellor dismissed the petition and granted Jerry Jones’s request for attorney’s fees in the amount of $650.

Christine Jones first contends that the chancellor abused his discretion in refusing to hold Jerry Jones in contempt. On de novo review, we disagree and hold that the result reached by the chancellor was correct but not for the reasons stated by the chancellor in open court.

Our standard of review when a chancellor has refused to punish an alleged contemnor is abuse of discretion. Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986). For a person to be held in contempt for violating a court order, that order must be clear and definite as to the duties imposed upon the party, and the directions must be expressed rather than implied. Id. A person cannot be held in contempt for failing to do something which the trial court did not order. McCullough v. Lessenberry, 300 Ark. 426, 780 S.W.2d 9 (1989); Waldon v. Waldon, 34 Ark. App. 118, 806 S.W.2d 387 (1991).

In the case at hand, the chancellor found no basis for contempt because when interpreting the required-school language in the Domestic Relations Handbook, the local practice had always been to rely on the public school schedule for determining the last day of school. We refuse to countenance this justification as a legitimate precept for interpretation. Local practices and local interpretations work to the disadvantage of parties and attorneys outside of the district, the same as do local rules. See In the Matter of the Adoption of Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990). We note as an adjunct to this point that this controversy could have been easily avoided had the parties used language specifically related to this case in the March 7, 1994 order rather than boilerplate language from the Domestic Relations Handbook. Also related to this point is the question of whether this matter is moot due to Cameron’s change of schools. There was testimony from Jerry Jones that Cameron would be attending a different pre-school in the 1994-95 school year. But the record is not definite on whether this actually occurred so as to obviate the dispute before us in this appeal. We have opted, therefore, to consider the merits.

We conclude that the required-school language in the March 7, 1994 order is ambiguous. Christine Jones interprets those words as pertaining to the last day of the school Cameron actually attended. Jerry Jones, on the other hand, interprets them in accordance with the public school schedule since Cameron was not yet required to go to school. We believe that both interpretations are reasonable. Because the language at issue is imprecise and unclear, we affirm the chancellor’s dismissal of the contempt motion.

Christine Jones next raises two points: (1) the chancellor erred in using local rules and local interpretations in this case, and (2) use of the Domestic Relations Handbook by the chancellor violates the doctrine of separation of powers in that it removes judicial discretion. Though local practice and interpretation of what is required school is more the issue here, we decline to entertain both issues because they are being presented for the first time on appeal. See Bell v. Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994). The appellant urges in contravention of this conclusion that she had no opportunity to raise these issues because reliance on the Domestic Relations Handbook and local practice first occurred in the chancellor’s ruling and that in any event, this court reviews chancery matters de novo on appeal and, accordingly, can decide the questions.

The appellant, however, was well aware that the Domestic Relations Handbook was being used by the chancellor prior to his ruling and order dismissing her contempt petition. The Handbook was expressly referenced in the March 7, 1994 order. It was also very much at issue when the question of required school was extensively debated at the contempt hearing on June 15, 1994. Indeed, the chancellor made reference to the fact that Christine Jones had known about the Handbook for two years. She also was aware that local practice was being used as an interpretative tool against her. The chancellor explained that fully at the hearing. Yet, she did not object.

In sum, at no point did she raise the two issues that she now presents to this court. De novo review does not mean that this court can entertain new issues on appeal when the opportunity presented itself for them to be raised below, and that opportunity was not seized. Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992); Walker v. Walker, 262 Ark. 648, 559 S.W.2d 716 (1978). In deciding these two issues as we do, we do not in any way intend to suggest that the Domestic Relations Handbook represented anything other than a local rule. See In re: Changes to the Arkansas Rules of Civil Procedure and the Arkansas Rules of Appellate Procedure, Abolishment of the Uniform Rules of Circuit and Chancery Court, and Publication of Administrative Orders, 294 Ark. 664, 742 S.W.2d 551 (1987). We simply do not reach these issues.

For her last point, Christine Jones urges that the award of sanctions under Ark. R. Civ. P. 11 was an abuse of the chancellor’s discretion. We recognize the fact that chancery courts can and often do award attorney fees to the prevailing party. See, e.g., Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986). We further are aware that the chancellor’s order does not state for what reason he was granting Jerry Jones’s request for attorney fees in the amount of $650.

Be that as it may, the events surrounding the fee award lead ineluctably to the conclusion that the award was in the nature of Rule 11 sanctions. For one thing, Jerry Jones expressly asked for attorney’s fees as a Rule 11 penalty in his Response to Motion for Contempt. He also testified that the contempt hearing was “a form of harassment and needless cost of litigation.” These are elements of a Rule 11 violation. He added that the hearing had inconvenienced him and caused him to miss the entire morning at his office. He stated that the legal fees for the hearing would be for five hours at the rate of $125 an hour and that he was asking that Christine Jones pay that fee.

The chancellor in rendering his decision from the bench stated:

Well, Ms. McNutt [appellant’s counsel], if you had checked into this,. . . this hearing would never have been necessary. I’ve always been of the opinion that a local attorney has a very definite edge over an out-of-town attorney, because you know the local situations. I know that when I went out of town to court, if I didn’t know the judge and know what was likely to be done, I always inquired of local attorneys what was going on, to make sure that I knew.
We have used this standard, because it gives the greatest fairness to all of the parties. Next year, Dr. Jones could have had the child in some school that goes halfway through the summer, and thereby defeating Mrs. Jones’ visitation. So, for that reason, unless there’s some compelling reason to deviate, we’ve always used the public school year, just so the parties would know what, to expect.
Now, I have something that’s even more — that bothers me, even more. Christine Jones testified that she had never seen that Blue Book [Domestic Relations Handbook]. This Court has personal knowledge of the fact that she has. Over two years ago — or, approximately two years ago, this Court put a sign on the outside of its office door — its chambers door stating Court Personnel Only. After this case was commenced, Christine Jones came through that, despite that sign, came into the office, and obtained a Blue Book. I did not personally talk with her, but I did see her when she did it. And, I discussed this, at a later time, with her attorney. . . .

A colloquy ensued among the chancellor, Christine Jones, and her counsel. The chancellor then concluded that the purpose of the sign on his door was to keep litigants out, and he announced that he was dismissing the contempt petition and awarding Jerry Jones $650 in attorney’s fees.

Viewing these events in sequence, it is apparent that the chancellor was sanctioning Christine Jones under Rule 11 for harassment and for increasing the cost of litigation. Both parties to this appeal seemingly agree because both couched their fee arguments in their briefs in terms of Rule 11 sanctions.

We conclude that granting the sanctions constituted an abuse of discretion, primarily for the reason already stated. Christine Jones’s interpretation of the March 7, 1994 order was reasonable, if not prevailing. She surely had other avenues of relief apart from a contempt motion. But we discern no improper motives on her behalf or absence of a factual or legal foundation in making her motion. We, therefore, reverse the order with respect to the award of attorney’s fees and remand for an order consistent with this opinion.

Affirmed in part. Reversed in part and remanded.