author: David Newberk, Justice.

text:
    Kathryn STEWARD v. Sid WURTZ and Rita Wurtz d/b/a Rita Wurtz Interiors
    96-1160
    938 S.W.2d 837
    Supreme Court of Arkansas
    Opinion delivered February 17, 1997

      Charles A. Brown, P.A., for appellant.

      Floyd A. Healy, for appellees.
   David Newberk, Justice.

This case arises from the Trial Court’s decision to modify (reduce) a previous order awarding an attorney’s fee and expenses to a prevailing defendant. The order which was later modified was in favor of the appellant, Kathryn Steward. The issues are whether the Trial Court had the authority to modify its order and whether Ark. Code Ann. § 16-22-309 (Repl. 1994), which provides for an award of an attorney’s fee in the event an unfounded claim or defense is made in bad faith, was correctly applied. We hold the Trial Court had the authority to modify its order, but that the statute was improperly applied; thus the decision is reversed and the case is remanded for further proceedings.

In 1992 Ms. Wurtz and Dean Haley, Jr., leased a building from Ms. Steward for $300 per month. Mrs. Wurtz and Mr. Haley shared space in the building where they operated separate businesses intended to be complimentary to each other. Each tenant was to pay half the monthly rent.

At the outset, Ms. Steward agreed to forego collection of several rental payments in exchange for improvements to be made to the property by the tenants. Later, she agreed to reimburse the tenants for other repairs and improvements.

In October, 1994, Ms. Wurtz and her husband, appellee Sid Wurtz, sued Mr. Haley and Ms. Steward. It was alleged that Mr. Haley, acting as agent for Ms. Steward, had placed Ms. Wurtz’s inventory in an alley behind the building and that it was damaged. It was further alleged that Mr. Haley took other assets from Ms. Wurtz. Finally, the complaint contended that Mr. Haley was obligated by his agreement with Ms. Wurtz to pay her $5,000 for the value of improvements to the building when she moved out. The Wurtzes prayed for $11,000 in compensatory damages and $50,000 in punitive damages. The claim against Mr. Haley was settled, and he was dismissed from the litigation.

In her answer to the complaint, Ms. Steward, in language quoted from Ark. R. Civ. P. 11, asked for an attorney’s fee and expenses, although the answer did not cite Rule 11.

A trial was held on December 15, 1995. Ms. Wurtz testified that Ms. Steward had paid her all she was owed. Mr. Wurtz testified he was a plaintiff only because he was Ms. Wurtz’s husband. Ms. Steward’s motion to dismiss was granted. At that point, counsel for the Wurtzes inquired about the Rule 11 sanctions sought by Ms. Steward. Counsel for Ms. Steward suggested that matter be considered at a later date, and the Trial Court agreed.

Ms. Steward later moved for attorney’s fees and expenses, citing Rule 11. On March 11, 1996, a hearing was held on the motion. Neither the Wurtzes nor their counsel appeared. The Trial Court, without discussion, awarded Ms. Steward $2,604.77, consisting of an attorney’s fee, costs, and expenses in the amount of $2,536.42 and personal expenses of Ms. Steward in the amount of $68.35, all of which were itemized in the motion.

An “Order of Supplemental Judgment” was filed the same day. The order recognized Ms. Steward’s claim for personal expenses and attorney’s fees “arising out of her defense in this action, in which the Court has found the Plaintiffs to have no meritorious cause against Kathryn Steward.”

The Wurtzes moved to set aside the order on March 18, 1996. Counsel for the Wurtzes admitted that he was responsible for his and their absence from the hearing, but claimed that he made an honest scheduling mistake which he characterized as an “unavoidable casualty and neglect.” The motion further claimed “That Plaintiffs have a valid defense as to the Motion for Contempt and Rule 11 sanctions which were brought against them.”

On May 31, 1996, a hearing was conducted on the Wurtzes’ motion to set aside. In their arguments to the Trial Court, the parties focused on § 16-22-309 rather than Rule 11 which was not mentioned. The Wurtzes asked the Trial Court to set aside the amount of the award and to take testimony concerning the amount of the fee owed. They claimed that the amount in controversy was $6,650 and that, in accordance with the statute, an award of attorney’s fees based on the lack of a justiciable issue would be limited to 10% of that amount. We cannot ascertain from the record the origin of the $6,650 amount-in-controversy figure stated by the Wurtzes. Ms. Steward argued that she was entided to the fee and expense amount previously awarded because the amount in' controversy should be determined from the amount of the damages prayed for in the complaint.

The Trial Court granted the motion to reduce the award pursuant to § 16-22-309 stating, “I am going to amend [the earlier order] to reflect the statutory amount of attorney’s fees as Six Hundred Sixty Five Dollars.” On June 5, 1996, a supplemental order was filed. In that order, the Trial Court specifically found:

[T]hat there has not been excusable neglect shown as to why [the Wurtzes] did not appear on March 11, 1996, therefore the order of Supplemental Judgment hereby stands. However, the Court having taken into account Ark. Code Ann. § 16-22-309, hereby modifies the order of Supplemental Judgment to reflect attorney’s fees awarded to Kathryn Steward in the amount of $655.00 representing 10% of the amount in controversy.

No explanation is given for the difference between the amount the Trial Court stated from the bench, $665, and the $655 amount appearing in the order.

Í. Procedure for modification

Ms. Steward argues that the Trial Court lacked the authority under Ark. R. Civ. P. 55(c) or Ark. R. Civ. P. 59 to reduce the amount of the award. We need not address those arguments because the Trial Court has the inherent power to modify an order with or without notice to any party by motion of a party or on its own within ninety days of filing. Young v. Young, 316 Ark. 456, 872 S.W.2d 856 (1994); Blissard Management & Realty, Inc. v. Kremer, 284 Ark. 136, 680 S.W.2d 694 (1984). The power of a court to modify or set aside a judgment during the term it was entered, now ninety days according to Rule 60(b), exists as an inherent power and outside of any rule or statute. Blissard Management & Realty, Inc. v. Kremer, supra; Massengale v. Johnson, 269 Ark. 269, 599 S.W.2d 743 (1980); Cowan v. Patrick, 247 Ark. 886, 448 S.W.2d 336 (1969); Wright v. Ford, 216 Ark. 55, 224 S.W.2d 50 (1949). That authority exists so that courts may review and correct any mistakes, errors, or indiscretions that might have been committed during the term. Massengale v. Johnson, supra; Underwood v. Sledge, 27 Ark. 295 (1871).

The supplemental order was filed on March 11, 1996 . The Order amending the supplemental order was filed within ninety days on June 5, 1996.

2. Amount in controversy

Section 16-22-309 provides for the award of attorney’s fees:

(a)(1) In any civil action in which the court having jurisdiction finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney, the court shall award an attorney’s fee in an amount not to exceed five thousand dollars ($5,000), or ten percent (10%) of the amount in controversy, whichever is less, to the prevailing party unless a voluntary dismissal is filed or the pleadings are amended as to any nonjusticiable issue within a reasonable time after the attorney or party filing the dismissal or the amended pleadings knew, or reasonably should have known, that he would not prevail. [Emphasis added.]

We note that the statute does not contemplate an award of “personal expenses” of the litigant other than an attorney’s fee.

Ms. Steward contends the amount in controversy is determined by reference to the complaint which, in this instance, sought a total of $61,000 in damages. We have not, in the context of Ark. Code Ann. § 16-22-309 (Repl. 1994), defined “amount in controversy.” We have generally accepted the amount pleaded in the plaintiffs complaint as the amount in controversy when that amount is significant in determining whether a court has jurisdiction, see Pacific Mutual Life Ins. Co. v. Bierman, 188 Ark. 703, 67 S.W.2d 577 (1934); Deans v. Legg, 184 Ark. 1175, 45 S.W.2d 523 (1932), as has the Supreme Court. Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289 (1938).

In the cases in which a plaintiff is pleading an amount in controversy sufficient to confer jurisdiction upon a court, issues arise as to whether the amount is stated in good faith or whether it “appear[s] to a legal certainty that the claim is really for less.” See St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289 (1938). Where both actual and punitive damages are recoverable under a complaint, each must be considered. Bell v. Preferred Life Society, 320 U.S. 238 (1943).

In a case such as this one, the situation is opposite; the plaintiff attempts to convince the court that the amount in controversy is less than enough to justify the attorney’s fee claim of the prevailing defendant. The obvious purpose of § 16-22-309 is to prevent claims without any basis in law or fact from being made in bad faith and for the purpose of harassment. In these circumstances, the court should be able to take the complaint at face value for determining the amount in controversy and thus the limit to be placed on the attorney’s fee if it is found, in the words of subsection (b) of the statute that,

the action . . . was commenced ... in bad faith solely for purposes of harassing or maliciously injuring another . . . without just cause or that the party knew or should have known, that the action . . . was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.

The Trial Court has apparently made that finding, and the Wurtzes have not cross-appealed from it. As 10% of $61,000 is more than $5,000, the limit prescribed by the statute is $5,000 in this case.

In closing, we observe that we have no inkling as to how or why the fee dispute in this case segued from a Rule 11 request to one made pursuant to § 16-22-309. No mention or argument was made to the Trial Court or on appeal with respect to whether the statute may be superseded by Rule 11.

We remand the case to the Trial Court for entry of an order consistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Donna BELL v. William G. DARWIN
    96-212
    937 S.W.2d 665
    Supreme Court of Arkansas
    Opinion delivered February 17, 1997

      Ellis Law Firm, by: George D. Ellis, for appellant.

      Anderson & Kilpatrick, by: Michael P. Vanderford, for appellee.
   Tom Glaze, Justice.

On December 16, 1993, Ronald Bell, with his wife Donna as a passenger, was driving to work in his 1986 Honda east on West Markham Street in Little Rock, when he approached a traffic light where the street intersects St. Vincent Circle on the south side. Appellee William G. Darwin was operating his Chevrolet heading west and was in the left turn lane under the light awaiting clearance of the eastbound traffic, so he could turn onto St. Vincent Circle. Darwin was into Circle Drive when Bell’s car struck the right rear panel of Darwin’s car. Donna and Ronald Bell were subsequently transported to the hospital by ambulance where it was determined Donna had sustained a fracture to her right lower leg.

The Bells filed suit alleging negligence on Darwin’s part and seeking damages for their injuries. At trial, a jury returned general verdicts in Darwin’s favor. Donna moved for a new trial, claiming the jury verdict was clearly contrary to the evidence, but the trial court denied her motion. Donna, alone, brings this appeal, urging that the trial court erroneously denied her motion-.

Donna contends the jury verdict was outrageous because she was an innocent party who clearly had no fault in causing the accident. She points out that the trial court gave the jury an instruction on comparative negligence, covering the two drivers, but the instruction did not include Donna since she bore no negligence. In sum, Donna argues that the only circumstance under which she could not have prevailed in her suit against Darwin is for the jury to have found her husband 100% at fault. She suggests such a finding was impossible.

In support of her argument she emphasizes the deposition testimony of Darwin, read at trial, where the following colloquy took place:

Q: Okay. Now, do you have a feeling or a gut feeling or an educated feeling or opinion, or whatever you want to call it, as to who was at fault in this automobile collision, you or Mr. Bell who was driving?
A: I have to believe that both of us were, but that’s for the court to . . .
Q: Sure. Okay. You think that both drivers were at fault?
A: Yes.

Donna further relies on this court’s decisions in Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996), and Bristow v. Flurry, 324 Ark. 51, 894 S.W.2d 894 (1995), where this court upheld the lower courts’ granting of new trials, in significant part, because the defendants had conceded or admitted some negligence. Like in Young and Bristow, Donna argues that the trial court had limited discretion in ruling on her new trial motion, and that the lower court erred in failing to conclude the evidence was clearly against the jury’s general verdict effectively finding Ronald 100% at fault. We must disagree.

In considering Donna’s argument, we agree that, when a motion for a new trial is made, the test to be applied by the trial court is whether the verdict is against the preponderance of the evidence. Ark. R. Civ. P. 59(a); Gilbert v. Shini, 314 Ark. 486, 863 S.W.2d 314 (1993). But where the motion is denied, as is the situation here, the test on review is whether the verdict is supported by substantial evidence, giving the verdict the benefit of all reasonable inferences permissible under the proof. Id., Russell v. Colson, 326 Ark. 112, 928 S.W.2d 794 (1996).

From our review of the record, we hold that, while the Bells had appropriately introduced Darwin’s deposition testimony wherein he opined sharing fault in the collision, the Bells’s own trial testimony and that of the investigating officer was sufficient to place the entire blame on Ronald. For example, Ronald related that prior to the accident, he had been on 1-630 when traffic became congested, so he took the University Avenue exit, proceeded north to West Markham Street and turned right, heading east. He conceded he was going to be late for work, and never recalled seeing Darwin’s car as it turned left in front of him at the intersection. Ronald said that he could not remember if he was in the inside (left) or outside (right) lane on West Markham, but he recalled striking the right rear panel of Darwin’s vehicle. He further testified that, as he approached the St. Vincent Circle’s intersection, he “looked up and saw yellow and looked down and hit him.” Donna testified that the traffic “light was turning yellow when Ronald decided he did not have time to stop before he went through it.” And Officer Pam Davis said that, in investigating the collision, Ronald’s car struck Darwin’s car at the south curb fine of West Markham when Darwin’s vehicle was already past the turn into St. Vincent Circle.

In addition, Darwin testified in his case-in-chief, but never conceded the fault mentioned in his earlier deposition. Instead, Darwin testified that immediately prior to the collision, he had stopped his car in the left turn lane awaiting the eastbound traffic to clear, and when the light turned yellow, he moved under the light, so he could make the turn onto St. Vincent Circle. He said that he only turned when he saw an eastbound car stop in the outside lane; he then crossed the two eastbound lanes and was driving on St. Vincent Circle when the collision occurred.

Obviously, while Darwin had offered sometime prior to trial to share some fault for the accident, conflicting versions of what happened and who was to blame were given at trial. As we have held in prior decisions, it is the sole province of the jury to determine not merely the credibility of the witnesses, but the weight and value of their testimony. Gilbert at 487. While Donna strongly argues evidence that, if accepted by the jury, could have placed fault on Darwin, there is, we submit, substantial evidence from which the jury could have found (and obviously did find) that Ronald was late for work, was inattentive, failed to see Darwin’s car, and ran the traffic light, striking the rear panel of Darwin’s car after his car had already driven past West Markham’s southside curb fine and into St. Vincent Circle. Accordingly, we affirm the trial court’s ruling, denying Donna’s motion for new trial.


text:
    Richard L. MAYS v. James NEAL, Executive Director of the Supreme Court Committee on Professional Conduct
    96-690
    938 S.W.2d 830
    Supreme Court of Arkansas
    Opinion delivered February 17, 1997

      Darrell F. Brown & Associates, P.A., by: Darrell F. Brown and Bowden Law Firm, by: David O. Bowden, for appellant.

      Claibourne W. Patty, Jr., for appellee.
   Tom Glaze, Justice.

Appellant Richard L. Mays brings this appeal from the appellee Supreme Court Professional Conduct Committee’s reprimand sanction, having found Mays violated Rules 1.4(b) and 5.5(b) of the Model Rules of Professional Conduct. Rule 1.4(b) directs that a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Rule 5.5(b) prohibits a lawyer from assisting a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.

This dispute arose after Mays’s law firm, Mays & Crutcher, P.A., undertook to represent Vanessa Conley, who on July 18, 1994, was involved in a motor vehicle accident in Little Rock. The other vehicle involved in the accident was a rental car, which was insured by Empire Insurance Company. At the scene of the accident, a man, later known to be Tim Mason, approached Conley, asking her who caused the accident. Conley said that Mason identified himself as an investigator, and suggested Conley needed legal representation. This interchange resulted in Conley signing a contract employing Mays as her attorney. Mason gave Conley a business card bearing the name of Catherine Stevens and instructed Conley that Stevens was the person Conley should call. Stevens later sent a copy of Conley’s contract to Empire, along with her business card.

Conley said that, on July 19, 1994, Stevens called Conley’s home and spoke with her husband, and Conley says she returned the call on July 20, 1994. Conley claims that, during her conversation with Stevens, Stevens referred her to the Price Chiropractic Clinic. Conley was subsequently treated by the Price Clinic from about July 25, 1994, to October 21, 1994. In November 1994, negotiations to setfie Conley’s claim took place between Stevens and Chuck Traylor, who was the claims adjuster with Empire Insurance Co. Some confusion and differences occurred between Stevens and Conley over the method and amount of payment Conley would approve before reaching any settlement. Conley also expressed that, although she had been released by the Price Clinic, she was still having pain and needed to see another doctor. Conley became dissatisfied with the manner in which her case was being handled, and on November 30, 1994, she went to Mays’s office to retrieve her file. While Stevens retained possession of Conley’s file because Mays was not present, it is clear the Mays-Conley relationship had been severed by December 6, 1994 — the date Stevens had notified Empire Insurance by letter (with a copy to Conley) that Mays no longer represented Conley. The letter also reflected that Conley had rejected Empire’s $9,000.00 offer to settle, but Mays had retained an attorney’s lien on any proceeds to be paid Conley in the future. Conley later claimed she had been unaware of any $9,000.00 offer until she received a copy of the December 6 letter.

Conley subsequently pursued her claim without the assistance of an attorney, and sought information from Empire Insurance by writing that Company on March 26, 1995. Empire’s adjuster, Traylor, responded, indicating that he had not received the December 6 letter written by Mays, that he had already settled Conley’s claim by having spoken with “Jim,” who was with Mays’s firm, and that Conley would have to obtain a letter reflecting Mays no longer represented her. In May of 1995, Conley forwarded to Traylor a copy of Mays’s earlier December 6 letter, and informed Traylor that she had since contacted the Supreme Court Professional Conduct Committee and complained about Mays’s representation. She further asked Traylor for a copy of the $9,000.00 check dated November 30, 1994, which purportedly had been sent to Mays in settlement of her claim. Upon receipt of Conley’s May 1995 letter, Traylor sent Conley another letter, wherein he forwarded her a copy of the $9,000.00 check. The check had never been cashed. In August of 1995, Conley filed her formal complaint against Mays with the Professional Conduct Committee, alleging eight violations of the Model Rules of Professional Conduct, two of which the Committee eventually found meritorious. Besides complaining to the Committee about her initial confusion concerning the manner in which Mays established his contractual relationship with Conley, she also complained he failed to communicate and keep her informed concerning the law firm’s negotiations with Empire Insurance Company in her behalf.

Mays first controverts Conley’s complaints by raising several procedural points. None has merit. Mays initially argues this court’s Committee on the Unauthorized Practice of Law (CUPL) has prerequisite jurisdiction of this matter because its Rule III provides in part that “all inquiries and complaints relating to the unauthorized practice of law shall be directed to the Committee on the Unauthorized Practice of Law.” He further argues that, because Rule 5.5(b) of the Model Rules of Professional Conduct prohibits a lawyer from assisting a person who is not a member of the bar in performing the unauthorized practice of law, Conley was required first to get CUPL to determine what is or is not “the unauthorized practice of law.” We disagree. Nothing in either committee’s rules reflect that CUPL’s rules in any way preempted the Model Rules of Professional Conduct. As is obvious from reading them, the Model Rules deal only with the activities of licensed lawyers, whereas CUPL’s rules are intended to prevent non-lawyers from practicing law.

As this court has recognized earlier, it derives its power through Amendment 28 to the Arkansas Constitution to establish and maintain, through its Committee on Professional Conduct, jurisdiction over a lawyer’s person by virtue of the issuance of his license to practice law. McCullough v. Neal, 314 Ark. 372, 862 S.W.2d 279 (1993). Here, Conley’s complaints were not directed against Stevens or other employees of Mays’s law firm; they were filed against Mays, who is subject to this court’s jurisdiction by virtue of his status as a licensed attorney. Consequently, by filing her complaints against Mays, the Professional Conduct Committee, through this court’s supervisory authority, has subject matter jurisdiction to consider those issues that fall within the parameters of the Model Rules.

Mays’s other procedural attacks question the validity of the Professional Conduct Committee’s hearing and involve his assertion that the Committee had improperly placed the burden of proof on him. Neither argument has merit.

Conley, Mays, and other witnesses filed affidavits with the Committee, and the Committee later set what it designated as an evidentiary hearing on January 19, 1996. During the hearing, Mays’s counsel questioned the nature of the hearing, and asked the Committee how it intended to proceed. Counsel advised Committee members that Mays was present and ready to offer evidence and stated Mays wanted the Committee to make its decision at the hearing’s end. The Committee agreed to consider the hearing to be one on the merits and to decide the case at the end of the evidence. After thoroughly discussing confidentiality issues and the de novo nature of the Committee’s hearing as addressed in its rules, Mays’s counsel withdrew any comments he had made relative to what would happen after the Committee voted and ruled in Mays’s case.

Our review of the record reflects that Mays was prepared to present his case on the merits on January 19, 1996, and the Committee conceded that point to him. And while he mentions in his brief on appeal that he did not have his “office file” with him at the hearing, Mays fails to submit or argue that he had been prevented from introducing any relevant evidence. In fact, he vigorously contested the allegations offered against him. Because Mays received the relief he asked of the Committee (for it to decide the case at the hearing’s end), and he shows no prejudice in having proceeded, we hold the Committee’s hearing and action were valid. See Mikel v. Hubbard, 317 Ark. 125, 879 S.W.2d 558 (1994).

Mays’s third procedural argument is based upon two references made by the Committee in its written decision of March 27, 1996. One, the Committee mentioned that no evidence had been offered as to how Conley had initially come into contact with Tim Mason. In addition, he points out the Committee’s letter opinion also noted that, while Mays had testified that an attorney at his firm always decides whether to accept a case, Mays was unable to say which attorney accepted Conley’s case since Mays had not brought his office file to the January 19 hearing. Mays urges these Committee references reflected that it had impermissibly shifted the burden of proof to Mays and to do so was error. Our short answer to this procedural claim is that Mays never raised it before the Committee. Instead, the Committee willingly proceeded with the January 19 hearing and Mays, himself, explained Mason’s involvement as well as the office procedure his law firm utilized in accepting cases. Besides, considering all the evidence submitted to the Committee, we find these two suggested evidentiary findings in the Committee’s opinion letter to be harmless. Suffice it to say, the Committee proceeded with its case on January 19, 1996, by calling its six subpoenaed witnesses and introducing its other evidence, and, as discussed more fully hereafter, we believe the Committee fully met its burden of proof. In this respect, we now turn to the merits of Mays’s last argument.

In considering Mays’s argument that the evidence is insufficient to support the Committee’s granting a reprimand in this case, we first set out our standard of review that appeals from any action by the Committee shall be heard de novo on the record, and this court shall pronounce such judgment as in its opinion should have been pronounced below. Finch v. Neal, 316 Ark. 530, 873 S.W.2d 519 (1994). This court affirms the Committee’s action unless it is clearly against the preponderance of the evidence, and will not reverse its findings unless they were clearly erroneous. Here, in reaching its decision, the Committee recited considerable evidence, but failed to set out its findings. We reiterate what we said in Finch — while the Committee is not required to set out its findings, it would have been appropriate and most helpful if it had done so. Id. at 536, 537. However, while no findings were required, made, or requested in this matter, we will review this case on its record and pronounce such judgment as in our opinion should have been pronounced below.

We first address the Committee’s decision that Mays violated Rule 1.4(b) by failing to communicate properly with his client, Conley. Rule 1.4(b) provides, “[A] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Adequacy of communication depends in part on the kind of advice or assistance involved. See Comment to Rule 1.4(b). The Comment further offers the example that, in negotiations where there is time to explain a proposal, the lawyer should review all important provisions with the client before proceeding to an agreement.

In the present case, such a review did not happen. In fact, from the beginning, there is proof that Mays’s law firm failed to explain its contract with Conley or make clear early in the employment relationship .the objectives of that legal representation. While Mays testified that he initially tries to make contact with his clients, he conceded that he never met with Conley or spoke to her by telephone. Mays further conceded that Conley’s only contact with his firm was through his staff, and Stevens admitted that she had worked on Conley’s case before Mays knew Conley was a client. In addition, Conley averred that her only contact with the firm was through Stevens even though, on several occasions, Conley had asked for an appointment with Mays. Each time Conley was told she should communicate with Stevens. In sum, although Mays and Stevens both related that Mays had instructed Stevens how Conley’s case should be settled, the evidence is undisputed that Conley was afforded no opportunity to communicate directly with Mays and to ask him questions about her case. Obviously, the record supports the view that Mays had relied entirely upon his non-lawyer staff member to communicate with Conley even though Conley had posed questions concerning her legal representation, and was denied the opportunity to resolve those questions by meeting with him.

We next address Mays’s argument that the evidence is insufficient to support the Committee’s finding that he violated Rule 5.5(b) by assisting a person who is not a member of the bar to perform the unauthorized practice of the law. Again, it is helpful to our discussion to allude to the applicable comment to this model rule which in relevant part provides:

Paragraph (b) [of Rule 5.5] does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work.

Rule 5.3(b) further provides that a lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer. In this respect, a lawyer should give such assistants instruction and supervision concerning the ethical aspects of their employment.

The significance and meaning of Rules 5.3(b) and 5.5(b) become obvious when considered in light of this court’s decision in Undem v. State Board of Law Examiners, 266 Ark. 683, 587 S.W.2d 563 (1979), where the court discussed, as follows, what is meant and is included within the practice of law and why those matters are limited to performance by licensed lawyers:

This [prohibition] is not only to ensure professional competence, but is in the public interest, to ensure that the public be not led to rely upon the counseling, in matters of law, by those who are not answerable to the courts in this state for the manner in which they meet their professional obligations by compliance with standards of professional conduct imposed upon those engaging in the practice of law.

From the foregoing rules and principles, it is clear that, while a lawyer may delegate certain tasks to his assistants, he or she, as supervising attorney, has the ultimate responsibility for compliance by the non-lawyer with the applicable provisions of the Model Rules. In reviewing the record, we conclude Mays failed in this respect both in his firm’s initial contracting with Conley and when negotiating her claim.

We again review in more detail the events leading to the signing of Conley as a client. In fact, Conley’s testimony reflects she was confused and dissatisfied with her legal representation beginning when she signed Mays’s contract at the scene of her accident on July 18, 1994. She said that she did not know who Mason was or what she had signed. She thought the paper she signed was for Mason to investigate the accident and to authorize him to get information. Mays testified that he did not employ, nor did he know Tim Mason, even though Mason possessed Stevens’s business card and the law firm’s employment contract which Conley signed. Ray Keech, an investigator and process server hired by the Committee, testified that in his attempts to locate Mason he was given a phone number, which turned out to be that for Mays & Crutcher. When Keech called the number, the person answering indicated that Mason only came into the office about once a month.

Mays testified he later learned from his paraprofessional, Jimmy Morris, that Morris had given Mason a blank contract intended for another potential client, Bobby Jett, who lived in Pine Bluff. Morris had asked Mason to take the contract to Jett, who was interested in retaining the firm. Mason apparently gave that contract to Conley. Mays testified that he would have had grave concerns if he had known how his contract had been entered into with Conley. Even so, it is clear Mays would not have learned of the contract by signing it, because Mays’s agreement did not require his signature and had no place for him or any other attorney to sign. Also, he could not have been apprised of the circumstances surrounding the procurement of the contract because, as Mays conceded, he never met with Conley. Instead, it was Stevens who first contacted Conley by letter dated July 19, 1994, confirming the law firm had commenced work in Conley’s behalf. That correspondence bears Mays’s stamped signature. From this and other evidence, we believe the Committee could reasonably conclude that Mays had failed to supervise his non-lawyer staff personnel in meeting his fundamental obligations owed any new client, namely, to explain the parties’ responsibilities under the contract, and to permit the client to ask questions and to make informed decisions regarding the representation.

We also note that there was substantial evidence that Mays had provided inadequate supervision over the manner in which his assistants negotiated Conley’s claim. Mays testified that he monitored Conley’s personal injury claim and evaluated it after receiving medical reports, bills, and wage-loss statements. He stated that he met with Stevens and Morris, and established a high and low range within which to settle. Mays said that Jimmy Morris had most of the contacts with Empire Insurance, and Stevens mostly dealt with Conley. Because Conley’s injury was a “soft-tissue” injury and she had incurred medical expenses of $2,700.00 to $2,800.00, Mays said he set a settlement range between $6,500.00 and $10,500.00.

Contrary to Stevens’s version, Conley testified that she had never told Stevens how much she wished to net and never authorized a settlement in any amount. Nonetheless, Mays stated that he had authorized settlement for $9,000.00 because he could make some money and satisfy Conley as well. Without obtaining Conley’s approval, Morris called Traylor at Empire Insurance, and the Company sent Mays a check for $9,000.00. While Conley had advised Stevens she would not settle for the Company’s offer, Conley was unaware the Company had sent a $9,000.00 check until months after she had terminated Mays’s firm.

As confusion had resulted from Conley’s signing of Mays’s employment contract, confusion also arose during settlement negotiations of Conley’s claim. It is obvious from the testimony that this confusion led to Mays extending a final offer to Empire Insurance without the offer having ever first been approved by Conley.

As addressed above, Mays, as supervising attorney, must bear the ultimate responsibility for the legal functions Stevens and Morris undertook. The Supreme Court of New Jersey, citing Ethical Consideration 3-6 of the ABA Model Code of Professional Responsibility, has noted:

A lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delegation is proper if the lawyer maintains a direct relationship with his or her client, supervises the delegated work, and has complete responsibility for the work product.

In re Opinion No. 24 of the Committee on the Unauthorized Practice of Law, 607 A.2d 962, 967-68 (1992). (Emphasis added.) Mays’s office procedures fostered confusion by permitting Stevens and Morris to act outside his close supervision. For example, these two paraprofessionals, when dealing with third parties, were authorized by Mays to refer to firm clients as their clients. In addition to being given broad authorization to use Mays’s signature stamp and thereby act in Mays’s stead, Mays also allowed Stevens to send correspondence to Empire Insurance referring to Conley as Stevens’s client. Conley averred that she never understood how Stevens, rather than Mays, could advise her concerning the “equities” of her claim or had the authority to correspond with the insurance company.

Also adding to Conley’s confusion was that, while Conley knew of Stevens, she was wholly unaware of the role Morris played in the negotiations with Empire Insurance, and only learned of Morris’s existence after the insurance company later told her it had settled Conley’s claim with “Jim.” Unlike with Stevens, Morris’s name was never disclosed as an assistant on the law firm stationery.

In sum, we must conclude, as did the Committee, that Mays failed to properly delegate his legal work and responsibilities and failed to properly supervise work delegated to his assistants. If he had, he would have been in the position at the least to have tried to resolve the questions that continued to resurface during his legal representation of Conley. For these reasons, we affirm the Committee’s decisions.

       The business card reflected the Mays & Crutcher Law Offices and showed Catherine Stevens as “Senior Claims Manager.”

       Stevens testified that she never called Conley on July 19, and that she never gave Conley only the Price Clinic’s name, since it was Mays’s practice to suggest several physicians’ names and allow the client to choose.

       Jett testified that he had spoken with Morris about Mays’s law firm because Jett was dissatisfied with his lawyer. He said he expected to receive a contract from Morris, but never received one.

       Stevens’s name appeared on law firm stationery as a claims manager.


author: Donald L. Corbin, Justice.

text:
    STUCCO PLUS, INC. v. Donald ROSE and Second Injury Trust Fund
    96-256
    938 S.W.2d 556
    Supreme Court of Arkansas
    Opinion delivered February 17, 1997

      Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by: James A. Arnold II and E. Diane Graham, for appellant.

      Lawrence W. Fitting, P.A., for appellee Donald Rose.

      Terry Pence, for appellee Second Injury Fund.
   Donald L. Corbin, Justice.

Appellant Stucco, Incorporated, appeals the decision of the Arkansas Workers’ Compensation Commission holding that Stucco is liable for benefits to its employee, Appellee Donald Rose, at the total disability benefits rate, that the liability of Appellee Second Injury Trust Fund does not begin until Stucco’s liability is paid out, and that Stucco is responsible for an attorney’s fee on the difference between Rose’s total disability benefits and permanent partial disability benefits. The Arkansas Court of Appeals affirmed the Commission’s decision. Stucco, Inc. v. Rose, 52 Ark. App. 42, 914 S.W.2d 767 (1996)." We granted Stucco’s petition for review of that decision, which was decided by a tie vote. When we grant review following a decision by the court of appeals, we review the case as though the appeal was originally filed with this court. Maloy v. Suttgart Memorial Hosp., 316 Ark. 447, 872 S.W.2d 401 (1994). We find error in the Commission’s decision and reverse and remand.

Facts and Procedural History

The facts of this case are not disputed. Rose sustained a work-related injury to his lower back on June 26, 1990. His healing period ended June 23, 1991. As a result of this injury, he sustained an anatomical impairment of 13% to the body as a whole. Rose had a preexisting disability or impairment which, when combined with the June 1990 injury, resulted in his total disability. The 13% impairment equates to a benefit period of 58.5 weeks. The maximum weekly rate for permanent partial disability benefits for Rose’s June 1990 injury is $169.59. The maximum weekly rate for total disability benefits is $226.11.

Both Stucco and the Second Injury Trust Fund accepted Rose’s claim as compensable and as governed by Ark. Code Ann. § 11-9-525(b)(5) (Repl. 1996). A dispute arose, however, concerning the rate at which Rose’s benefits should be paid and by whom they should be paid. Stucco contended that it should only be hable for benefits for the 58.5 weeks at the permanent partial disability rate of $169.59 and that the Second Injury Trust Fund is Hable for the difference between that rate and the total disability rate of $226.11. The Second Injury Trust Fund contended that its liability for Rose’s total disability benefits did not begin until after Stucco paid the first 58.5 weeks at the total disability rate of $226.11.

The Administrative Law Judge found that Rose was entitled to receive benefits for his 13% impairment at the total disability rate of $226.11 beginningjune 24, 1991. The Administrative Law Judge ordered Stucco to pay the 58.5 weeks of benefits at the permanent partial disability rate of $169.59 per week, and, at the conclusion of the 58.5 weeks, ordered the Second Injury Trust Fund to pay the difference between the total disability rate of $226.11 per week and the permanent partial disability rate of $169.59 per week that accrued during the first 58.5 weeks. The Administrative Law Judge further ordered that, after the 58.5-week period, the Second Injury Trust Fund was to pay Rose benefits at the total disability rate of $226.11 until he is no longer disabled or dies.

The Administrative Law Judge determined that neither Stucco nor the Fund controverted Rose’s claim for total disability benefits subsequent to the 58.5-week period, but that both Stucco and the Fund controverted Rose’s claim to weekly benefits in excess of the permanent partial disability rate for the first 58.5 weeks. Accordingly, the Administrative Law Judge ordered the Fund to pay the maximum statutory attorney’s fee based on the additional benefits found to be its liability. In addition, the Administrative Law Judge awarded Rose’s attorney a fee of $500.00 to be paid by Rose.

The Second Injury Trust Fund appealed to the Commission, and Rose cross-appealed on the issue of controversion of total disability benefits after the 58.5 weeks. The Commission affirmed the Administrative Law Judge’s finding that Rose was entitled to benefits at the total disability rate of $226.11, but reversed the finding that Stucco was responsible for the first 58.5 weeks at the permanent partial disability rate and ordered Stucco to pay at the total disability rate.

The Commission affirmed the Administrative Law Judge’s finding that neither Stucco nor the Fund controverted the total disability benefits after the first 58.5 weeks, but reversed the Administrative Law Judge’s determination that the Fund was liable for the fees to Rose’s attorney based upon the difference between the two rates of benefits.

Stucco appealed the Commission’s decision. Rose cross-appealed on the issue of controversion after the 58.5 week period. Rose has not pursued his cross-appeal in this court. Stucco presents two arguments for reversal of the Commission’s decision. First, Stucco contends the Commission erred in holding that Stucco must pay Rose’s benefits at the total disability rate. Second, Stucco contends the Commission erred in holding Stucco responsible for attorney’s fees on the difference between Rose’s permanent partial disability rate and total disability rates. We find merit to both arguments and reverse and remand.

Rate of Benefits

The very narrow issue presented is strictly a question of law. All parties agree that Rose is entitled to total disabihty benefits of $226.11 as a result of the combination of a preexisting injury and a later injury that Rose incurred in June 1990 while working for Stucco and that resulted in the 13% impairment rating. All parties agree that Second Injury Trust Fund liability is established. Ah parties agree that Stucco is responsible for paying Rose’s benefits for the first 58.5 weeks due to the later injury. The question is how much of the $226.11 does the Workers’ Compensation Act require Stucco to pay, all $226.11 or only $169.59 with the Second Injury Trust Fund then making up the difference. In other words, at what rate does the Workers’ Compensation Act require Stucco to pay benefits during the 58.5 weeks, the permanent partial disability rate or the total disability rate?

Section 11-9-525 addresses total disability resulting from the combination of a preexisting injury and a later injury, and provides as follows:

11-9-525. Compensation for disability ■ — • Second injuries.
(a)(1) The Second Injury Trust Fund established in this chapter is a special fund designed to ensure that an employer employing a handicapped worker will not, in the event the worker suffers an injury on the job, be held liable for a greater disabihty or impairment than actually occurred while the worker was in his employment.
(2) The employee is to be fuhy protected in that the fund pays the worker the difference between the employer’s liability and the balance of his disabihty or impairment which results from ah disabilities or impairments combined.
(b) (5) If the previous disabihty or impairment, whether from compensable injury or otherwise, and the last injury together result in permanent total disabihty, the employer at the time of the last injury shah be hable only for the actual anatomical impairment resulting from the last injury considered alone and of itself. However, if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in §§ 11-9-501 — 11-9-506 for permanent total disability, then, in addition to the compensation for which the employer is hable and after the completion of payment of compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under §§ 11-9-501 — 11-9-506 out of the fund.

Section 11-9-525 (b)(5) is at the heart of this dispute and is silent on the rate at which an employer’s liability for benefits is to be determined. This silence is perhaps due to the fact that when the language at issue in this case was adopted by 1981 Ark. Acts 290, § 4, the rates for permanent partial disability and permanent total disability benefits were the same. Those rates became different pursuant to 1986 Ark. Acts 10, § 2.

The Commission applied section 11-9-525 (b)(5) and held that Stucco must pay at the total disability rate for the 58.5-week period. In addition to section 11-9-525 (b)(5), the Commission also relied on what it described as the public policy of protecting the Second Injury Trust Fund’s solvency. The Commission’s reasoning for its interpretation of section 11-9-525 was flawed, and its consideration of the Fund’s solvency was misplaced.

The Commission reasoned that but for the June 1990 injury and the corresponding 13% disability, Rose would not be permanently disabled, and, therefore, Stucco should be responsible for 13% of the total disability. The Commission thus held that Stucco’s share of Rose’s benefits was $226.11, the total disability rate, for 58.5 weeks, the time period for Rose’s permanent partial disability benefits. The Commission’s “but for” reasoning is flawed because it completely disregards section ll-9-525(b)(5)’s requirement that when permanent total disability results from a previous injury combined with a last injury, “the employer at the time of the last injury shall be liable only for the actual anatomical impairment resulting from the last injury considered alone and of itself.” (Emphasis added.) The aforementioned “but for” reasoning by the Commission does not consider the last injury alone and of itself but includes the last injury and its contribution to the total disability. Section 11-9-525 (b)(5) clearly and unambiguously prohibits such consideration of the total disability when determining the employer’s liability for benefits.

The Commission also reasoned that Stucco would be receiving a windfall if the Fund were held liable for the difference. The Commission’s “windfall” reasoning is also flawed. Stucco is not avoiding any liability for any injury that occurred when Rose was employed at Stucco. Likewise, the Fund is not liable for any injury that occurred when Rose was employed at Stucco. Therefore, Stucco does not gain anything, much less a windfall.

The Commission’s reliance on what it called the public policy of protecting the solvency of the Fund is misplaced for several reasons. Initially, there is simply no evidence in this record of the Fund’s solvency or insolvency, and therefore any concern in that regard is premature. Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988). Moreover, in Mid-State Constr. Co. this court cited with approval Justice Newbern’s dissent in McCarver v. Second Injury Fund, 289 Ark. 509, 715 S.W.2d 429 (1986), which pointed out that the court of appeals’ reference to language from Arkansas Workmen’s Compensation Comm’n v. Sandy, 217 Ark. 821, 233 S.W.2d 382 (1950) on consideration of the Fund’s solvency came from the Commission and not from this court. Secondly, we note that the funding mechanisms provided for the Fund in 1950 by Ark. Stat. Ann. § 81-1313(f)(2)(iii) (Supp. 1949) were remarkably different from the current funding mechanisms provided in Ark. Code Ann. §§ 11-9-301 to -307 (Repl. 1996). This difference in funding sources underscores that any consideration of the Fund’s solvency in this case is inappropriate. Finally, we note that, in the event the Fund becomes insolvent, the General Assembly has expressed an intent to provide claimants with arrearages once the Fund regains its solvency, without any possibility of reverter of responsibility for benefits to employers. Section 11-9-301 (f).

The Second Injury Trust Fund relies on the second sentence of section 11-9-525(b)(5) and argues that the language “in addition to the compensation for which the employer is Hable and after the completion of payment of compensation by the employer,” means that the Fund’s liability does not begin until “after” the end of the 58.5 weeks, therefore Stucco must pay the total disability rate for the 58.5 weeks. The Second Injury Trust Fund maintains that the statute does not contemplate concurrent payments by an employer and the Fund. Such a constrained interpretation of a statute is not necessary when the language of the statute is clear and unambiguous, because we give the language of a clear and unambiguous statute its plain and ordinary meaning. McGee v. Amorel Pub. Sch., 309 Ark. 59, 827 S.W.2d 137 (1992).

When a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. State v. Johnson, 317 Ark. 226, 876 S.W.2d 577 (1994); Southern Sur. Co. v. Dardanelle Rd. Improvement Dist. No. 1, 169 Ark. 755, 276 S.W. 1014 (1925). It is clearly expressed in section 11-9-525 that the purpose of the Fund is to fully compensate an employee for his total injuries while simultaneously protecting employers from having to pay for injuries that did not occur while the employee was working for that employer. That the employer is not to be held hable for a greater disability than actually occurred while the worker was in that employer’s employment is mentioned in the statute no less than four times. Moreover, the statute clearly and unambiguously provides for the Second Injury Trust Fund to make up the balance of the employee’s total benefits and the employer’s share when it states that the “fund pays the worker the difference between the employer’s liability and the balance of his disability or impairment which results from all disabilities or impairments combined.” (Emphasis added.)

In short, the Fund’s argument in support of the Commission’s interpretation of the statute is without merit. Section ll-9-525(b)(5)’s language simply does not prohibit payments from both an employer and the Fund within the same period. . The words “in addition to” and “after” payment of the employer’s liability do nothing more than signal the possibility that an employee who is totally disabled from more than one injury could receive benefits concurrently from both the employer and the Fund without violating the statutory maximum benefits for total disability. That the employer is not liable for the total disability rate is patently clear from the use of the word “remainder” in the last clause of the subsection “the employee shall be paid the remainder of the compensation that would be due for permanent total disability . . . out of the fund.”

We interpret section 11-9-525 (b)(5) to mean that Stucco’s liability for Rose’s benefits is limited to the injury occurring in June 1990 considered alone and of itself, and therefore, Stucco’s liability is at the permanent partial disability rate of $169.59 for 58.5 weeks. We further interpret section 11 — 9— 525(b)(5) to mean that, after Stucco pays its weekly liability, the Fund must pay the balance of Rose’s total disability benefits, or $56.52 per week for the 58.5 weeks. There is no dispute that the Fund is responsible for the full $226.11 per week thereafter.

Attorney’s Fees

Stucco argues that the Commission’s award of fees based upon Stucco’s liability for benefits at the total disability rate should be reversed because Ark. Code Ann. § ll-9-715(a)(2)(B)(ii) (Repl. 1996) provides that attorney’s fees “shall be allowed only on the amount of compensation controverted and awarded.” This argument has merit.

Where an employer demonstrates that it is liable for only a portion of a worker’s present disability within the meaning of Second Injury Fund legislation, attorney’s fees due from the employer should only be computed upon the basis of the amount of the employer’s liability for benefits, not upon the amount of total disability benefits. Buckner v. Sparks Regional Medical Ctr., 32 Ark. App. 5, 794 S.W.2d 623 (1990); Prier Brass v. Weller, 23 Ark. App. 193, 745 S.W.2d 647 (1988). In short, an employer’s liability for attorney’s fees is limited to the amount of benefits awarded from injuries occurring while the worker was employed by that employer. Given our reversal of the Commission’s decision of the amount of Stucco’s liability for benefits, we also reverse the amount of attorney’s fees assessed against Stucco.

The Commission’s decision is reversed, and the case is remanded for entry of an order consistent with this opinion.


author: Robert L. Brown, Justice.

text:
    Bob COSGROVE v. The CITY OF WEST MEMPHIS, Arkansas; Keith Ingram, Mayor; and the West Memphis Public Utilities Commission
    96-286
    938 S.W.2d 827
    Supreme Court of Arkansas
    Opinion delivered February 17, 1997

      Mike Everett, for appellant.

      David C. Peeples, West Memphis City Att’y, for appellees.
   Robert L. Brown, Justice.

On January 10, 1994, appellant Bob Cosgrove was elected to serve as a member of the appellee West Memphis Public Utilities Commission (Commission) by a majority vote of the West Memphis City Council. Shordy thereafter, appellee Keith Ingram, the mayor of West Memphis, vetoed the election of Cosgrove. The city council subsequentiy defeated a motion to override the veto. Cosgrove then filed a second amended and substituted complaint seeking declaratory and injunctive relief. He requested that the chancery court declare the veto exercised by the mayor to be invalid, and he sought to enjoin the city council from filling his seat on the Commission. In the alternative, he prayed that the ordinance creating the Commission (Ordinance No. 1069) be declared unconstitutional because it was adopted without legislative authority.

On September 26, 1994, appellees moved for summary judgment and contended that the mayor had the authority to veto the election of Cosgrove and that Ordinance No. 1069 was valid. On January 17, 1996, the circuit court entered an order granting summary judgment and determined both that the mayor acted within his authority in exercising the veto and that Ordinance No. 1069 properly established the Commission as a valid agency of the City of West Memphis.

Cosgrove complains on appeal that the circuit court erred in concluding that Ordinance No. 1069 properly established the Commission as a valid agency of the City of West Memphis. The primary focus of Cosgrove’s argument is his contention that the city council enacted the ordinance without statutory authority and, therefore, all actions taken by the Commission are of no effect. Thus, he is in the anomalous posture of urging this court to declare invalid the Commission to which he was previously elected.

We have stated the general law regarding powers of municipalities as follows:

[Cities] have no inherent powers and can exercise only (1) those expressly given them by the state through the constitution or by legislative grant, (2) those necessarily implied for the purposes of, or incident to, these express powers and (3) those indispensable (not merely convenient) to their objects and purposes.

City of Little Rock v. Raines, 241 Ark. 1071, 1078, 411 S.W.2d 486, 491 (1967). See also Brooks v. City of Benton, 308 Ark. 571, 826 S.W.2d 259 (1992); City of Fordyce v. Vaughn, 300 Ark. 554, 781 S.W.2d 6 (1989). Furthermore, “any substantial doubt about the existence of a power in a municipal corporation must be resolved against it.” City of Little Rock v. Cash, 277 Ark. 494, 501, 644 S.W.2d 229, 231 (1982), cert. denied, 462 U.S. 1111 (1983). Armed with our caselaw, Cosgrove argues that there is no statute which authorizes the West Memphis City Council to create a public utilities commission comparable to what was done by Ordinance No. 1069.

Appellees parry Cosgrove’s argument by emphasizing that the City of West Memphis has been given the express authority to own and operate public utilities. See Ark. Code Ann. §§ 14-54-701 & -702 (1987); Ark. Code Ann. § 14-200-106 (1987). They further note that the General Assembly has given cities permission to create commissions for purposes of operating and managing public utilities which they own. See Ark. Code Ann. § 14-201-101 to -129 (1987 & Supp. 1995). Nevertheless, according to the appellees this authority is permissive, and a municipality is not required to establish a commission in strict compliance with the municipal code, should it decide merely to create an agency of that city. The appellees direct our attention to the following statute:

Any city of the first class owning and operating either a waterworks and distribution system or electrical light plant and system, or both, may by appropriate action by its city council or other governing body create a commission pursuant to this sub-chapter for the purpose of operating and managing the waterworks and distribution system or electrical light plant and system or both.

Ark. Code Ann. § 14-201-104(a)(l) (1987) (emphasis added).

In support of their argument, appellees rely almost exclusively on the case of Adams v. Bryant, 236 Ark. 859, 370 S.W.2d 432 (1963). In Adams, certain taxpayers of the City of Clarksville sued for injunctive relief against the Clarksville Light and Water Company, arguing that the creating ordinance was invalid and that it did not establish a valid commission because the Commission failed to conform to statutory requirements. The chancery court, however, concluded that the ordinance created a valid agency of the city and denied relief. On appeal, this court affirmed. We first observed that the appellants contended that the Act authorizing the Board of Public Utilities for Cities of the Second Class had certain requirements for the board that were not met by the city ordinance. But we then held that the Act was not mandatory:

Section 19-4001 simply provides that such a board may be created. Here, the citizens of Clarksville apparently did not desire to create the Board of Public Utilities, and the authority to operate the utilities, therefore remained in the City Council. We agree with the Chancellor, that in passing Ordinance 387, the city created an agency to operate the utilities heretofore mentioned. The city had the express statutory power to own and operate these utilities [Ark. Stat. Ann. § 20-316 (Repl. 1956)], and we have held that a City Council may designate agents to act, within the scope of their agency, on behalf of the city. Jonesboro v. Montague, 143 Ark. 13, 219 S.W. 309, Gladson v. Wilson, 196 Ark. 996, 120 S.W.2d 732.

Adams v. Bryant, 236 Ark. at 862-63, 370 S.W.2d at 435 (emphasis in original).

Hence, under this caselaw, it is apparent that a public utilities commission may be created in accordance with statutory dictates but that, alternatively, a commission to operate the utilities may also be established as an agency of the city. This precedent is clear that a city need not create an operating commission in accordance with legislative requirements so long as the commission remains an agency of the city. We further view Adams v. Bryant, supra, to be pertinent authority whether the city involved is a city of the second class as was involved in Adams or a city of the first class such as we have in the case at hand. Compare Ark. Code Ann. §§ 14-201-104(a)(l) and 14-201-302 (1987).

Cosgrove urges as an ancillary point that Ordinance No. 1069 empowers the Commission to make purchases up to $25,000 without confirmation by the city council and that this constitutes an unlawful delegation of legislative authority. He contends, as a corollary to this argument, that under state law city councils cannot spend more than $5,000 without complying with bidding procedures. See Ark. Code Ann. § 14-58-303(b)(2)(A) (1987).

We decline to reach this point and others made by Cos-grove in an attempt to distinguish Adams v. Bryant, supra. There is nothing in the abstract of the record submitted by Cosgrove as part of his brief on appeal that evidences that these precise arguments were made to the circuit court. When we are unable to determine from the abstract what arguments were made to the trial court and the rulings of that court, we will not entertain those arguments on appeal. See Reeves v. Hinkle, 326 Ark. 724, 934 S.W.2d 216 (1996); Hardy Constr. Co. v. Arkansas State Hwy. & Transp. Dept., 324 Ark. 496, 922 S.W.2d 705 (1996); Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993). In this respect, the burden is clearly placed on the appealing party to provide both a record and abstract sufficient for appellate review. The policy behind this standard has been stated as follows:

While the issue or argument may be contained in a pleading or brief in the record, we have said many times that there are seven justices of the Supreme Court and one record, and we will not be placed in the position of having seven justices scour one record for pertinent information. Kearney v. Committee on Prof. Conduct, 320 Ark. 581, 897 S.W.2d 573 (1995); Stroud Crop, Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994).

Hardy Constr. Co. v. Arkansas State Hwy. & Transp. Dept. 324 Ark. at 503, 922 S.W.2d at 708.

Finally, the appellees have not questioned on appeal the standing of Cosgrove to assert the invalidity of the Commission, though his standing is somewhat unclear. Because we affirm on other grounds, there is no need for us to address this issue. See Blann v. Alcoholic Beverage Control Bd., 317 Ark. 97, 876 S.W.2d 259 (1994).

Affirmed.

       Although no motion or order of transfer is contained in the record, the matter apparently was transferred to circuit court.


text:
    Elaine KELLEY and Marissa Kelley, by Elaine Kelley, Mother and Next Friend v. NATIONAL UNION FIRE INSURANCE COMPANY of Pittsburgh for the Little Rock National Airport and Floors & More, Inc.
    96-999
    937 S.W.2d 660
    Supreme Court of Arkansas
    Opinion delivered February 17, 1997

      Satterfield Law Firm, by: G. Randolph Satterfield, for appellant.

      Wright, Lindsey & Jennings, by: Patrick J. Goss and Stephen R. Lancaster, for appellee National Union Fire Insurance Company of. Pittsburgh, Pennsylvania.

      Matthews, Sanders & Sayes, by: Margaret M. Newton and Roy Gene Sanders, for appellee Floors & More, Inc.
   Robert L. Brown, Justice.

This is a slip-and-fall case in which the trial court granted summary judgment in favor of appellees National Union Fire Insurance Company of Pittsburgh (NUFI) for Little Rock National Airport (Airport) and Floors & More, Inc. Because we conclude that issues of material fact remain to be decided, we reverse the summary judgment and remand the case for further proceedings.

Appellants Elaine Kelley and Marissa Kelley, by her mother and next friend, filed their complaint against the Airport alleging that injuries were suffered and damages incurred as a result of the negligence of the Airport and Floors & More. According to their amended complaint, on July 19, 1994, Elaine Kelley was carrying her daughter, Marissa, age 11 months, after they exited an airplane at the Little Rock Airport. While walking down the main concourse, Elaine Kelley stepped onto ceramic tile. Her feet went out from under her, and she fell, causing injury to herself and to her daughter. Kelley alleged “[t]hat the ceramic tile in front of gate (six) 6 was covered in construction dust, causing the floor to become unexpectedly slippery.” She further alleged that Floors & More had been performing construction work on the concourse. Kelley asserted that the Airport was negligent in failing to clean up the dust that had been on the floor for a sufficient amount of time for Airport personnel to know of its existence. She prayed for damages in the amount of $5,000 for injuries to Marissa’s lip, front teeth, and gums. On her own behalf, she alleged injuries to her hip, back, leg, a tooth, and “shock to her entire nervous system” and asked for damages in excess of $50,000.

NUFI answered on behalf of the Airport and also admitted that a fall occurred but denied any negligence on the part of its insured. NUFI affirmatively pled comparative fault and filed a cross-claim against Floors & More for contribution or indemnity. Floors & More answered, and it, too, admitted that a fall had occurred but denied any negligence. It claimed that any dust on the floor was due to deficient maintenance by the Airport and affirmatively pled that the condition of the floor was an open and obvious danger. It denied NUFI’s cross-claim.

Discovery ensued followed by motions for summary judgment. Floors & More moved for summary judgment on the basis that Elaine Kelley had failed to show that any alleged dust on the floor was the result of Floors & More’s negligence. The company relied on Kelley’s admission in her deposition that she did not personally observe dust on the floor but was informed of the dust by another passenger. Floors & More further contended that even if the dust existed, Kelley failed to prove negligence on its part because there had not been any construction in the area for four days before the accident, and the area had been swept and vacuumed since that time.

Floors & More also attached the affidavit of Dan Billingsley, the president of the company, in support of its motion. Billingsley stated under oath that his crew was last present at the airport on July 15, 1994 — four days before the accident — and on that date, the crew was laying carpet at the opposite end of the terminal from where the accident occurred. The tile crew last worked in that same area on July 8, 1994, according to Billingsley. Billingsley averred that Floors & More cleaned the area after construction on each of those days and that the Airport maintenance crew continually swept and vacuumed the construction area and the remainder of the Airport. He further stated that Floors & More did not receive any complaints or hear of any falls from July 8, 1994 to July 19, 1994.

NUFI filed its own motion for summary judgment and contended that Kelley failed in her deposition to establish either the presence of a substance on the new tile or that the substance had been on the tile for such a length of time that the defendants reasonably should have known of its presence.

In response to the two summary-judgment motions, Kelley asserted that Floors & More had admitted that there was a substance on the floor, thereby rendering summary judgment inappropriate. In addition, she submitted several items of proof with her response to establish that dust was on the tile floor and that Floors & More had routinely failed to clean around its construction site. Her proof included her own deposition; the affidavit of her sister Melinda Frint, which referred to a “gritty” substance on the tile; Floors & More’s contract with the Airport where the company agreed to keep the work area and surrounding area clean; a letter from the architect to Floors & More dated February 15, 199[4], regarding cleanliness in the concourse; preconstruction meeting minutes dated March 3, 1994, concerning the dust problem; a letter from the architect to Floors & More dated April 28, 1994, regarding dust in the main concourse; a photograph dated July 25, 1994, depicting a sign that said “PARDON OUR DUST While We Improve Your Airport;” a letter dated August 8, 1994, stating that tape and dirt remained in the concourse; and the affidavit of Little Rock Police Officer Richard Jordan, who averred that he was made aware by the other Airport patrons of the slippery condition of the new tile that was being installed.

The trial court conducted a hearing on the motions. At the conclusion of the hearing, the trial court observed that there was no evidence of what caused Kelley to fall and that for a jury to decide in her favor would be commensurate with imposing strict liability. An order of summary judgment was subsequently entered.

I. Summary Judgment

Kelley argues on appeal that the trial court erred in granting summary judgment and in concluding that there was no evidence of the cause of her accident. Our standards for reviewing summary judgments and slip-and-fall cases have been often stated. Summary judgment should be granted only when it is clear that there is no genuine issue of material fact to be litigated. Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995); Hickson v. Saig, 309 Ark. 231, 828 S.W.2d 840 (1992). The burden of proving that there is no genuine issue of material fact is upon the movant — in this case NUFI and Floors & More — and all proof submitted must be viewed in a light most favorable to the party resisting the motion. Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994). Any doubts and inferences must be resolved against the moving party. Brumley v. Naples, supra; Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994). When the movant makes a prima facie showing of entitlement, the respondent — here, Kelley — must meet proof with proof by showing that a genuine issue exists as to a material fact. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992).

In the slip-and-fall context, we have held that it is not appropriate to grant summary judgment when the movant relies solely on the plaintiff’s statement that she did not know where the substance came from or how long it had been on the premises. Collyard v. American Home Assurance Co., 271 Ark. 228, 607 S.W.2d 666 (1980). We reasoned in Collyard that this is because the burden is on the moving party to show that he or she is entitied to judgment and that the movant cannot shift that burden to the plaintiff to show a genuine issue of fact, when the movant initially makes no offer of proof on a controverted issue. Id. The movant must offer his own proof to show that reasonable minds could not differ as to the conclusions they could draw from the facts presented and that the issue is appropriately resolved as a matter of law. See, e.g., Tyson Foods, Inc. v. Adams, 326 Ark. 300, 930 S.W.2d 374 (1996); Brunt v. Food 4 Less, Inc., supra.

Over the years, this court has frequently stated the principles that govern slip-and-fall cases. Those principles are set against the general backdrop that a property owner has a duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees. See Black v. Wal-Mart Stores, Inc., 316 Ark. 418, 872 S.W.2d 56 (1994); Sanders v. Banks, supra. We have said:

In order to prevail in a slip and fall case, the appellant must show either (1) the presence of a substance upon the premises was the result of the defendant’s negligence, or (2) the substance had been on the floor for such a length of time that the appellee knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Dunklin, 307 Ark. 12, 817 S.W.2d 873; Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986); see also AMI Civil 3rd, 1105. The mere fact that a person slips and falls does not give rise to an inference of negligence. J.M. Mulligan’s Grille, Inc. v. Aultman, 300 Ark. 544, 780 S.W.2d 554 (1990). Possible causes of a fall, as opposed to probable causes, do not constitute substantial evidence of negligence. Willmon, 289 Ark. 14, 708 S.W.2d 623.

Brunt v. Food 4 Less, Inc., 318 Ark. at 430, 885 S.W.2d at 896, quoting Derrick v. Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991). Mere proof that a floor is slippery will not defeat summary judgment; there must be proof of a substance on the floor such as water, grease, or wax. See Thompson v. American Drug Stores, Inc., 326 Ark. 536, 932 S.W.2d 333 (1996); Black v. Wal-Mart Stores, Inc., supra. Moreover, to avoid summary judgment, a plaintiff must offer some proof to contravene a movant’s proof, if the movant has shown that the substance was not there due to the movant’s negligence and that there was no substantial interval between the time the substance appeared on the floor and the time of the accident. See Sanders v. Banks, supra; Moore v. Willis, 244 Ark. 614, 426 S.W.2d 372 (1968).

II. Foreign Substance

We first turn to the issue of the presence of some foreign substance on the tile. Both appellees present Kelley’s deposition as proof that she did not see what caused her fall. The opposing proof offered by Kelley was that she observed dust on a bystander’s fingertips after her fall. The bystander was assisting Kelley after she fell and wiped the tile with her hand and showed the dust on her fingertips to Kelley. Added to this evidence was the affidavit of Kelley’s sister, Melinda Frint, who averred that she and Kelley walked from concrete in the main concourse “onto a gritty tiled area” where her sister slipped and-fell “on the gritty surface.” Because all doubts and inferences must be resolved in favor of the nonmoving party in summary-judgment proceedings, we view Kelley’s testimony and Frint’s affidavit as sufficient to raise a material fact question concerning the presence of dust or dirt on the tile. Brumley v. Naples, supra.

III. Negligence

We next must address how the dust got on the tile and how long it had been there. Again, both appellees offer Kelley’s deposition as proof that she did not know where the dust came from or its duration. The initial burden in summary-judgment matters, however, is on the movants, and the plaintiff’s recollection of events does not constitute an offer of proof on a controverted issue. See Collyard v. American Home Assurance Co., supra. The only other proof presented by both NUFI and Floors & More that they were not responsible for the alleged dust on the tile is the affidavit of Dan Billingsley. That affidavit included a statement that Floors & More cleaned up after each construction day and the Airport maintenance crew continually swept and vacuumed the construction area and the terminal.

With respect to NUFI, we question whether the averment by Billingsley, as president of Floors & More, is sufficient for NUFI to shift the burden of proof to Kelley to present evidence disproving that the tile was clean. But, furthermore, it appears that an issue of material fact remains to be resolved on whether either party was keeping the concourse clear of construction dust. For example, the preconstruction minutes of a meeting on March 3, 1994, involving the architect, airline representatives, Airport officials, and Dan Billingsley reflect that there was discussion about “a lot of dust” as a result of the tile removal, and it was necessary, as a result, to remove large areas of tile at night. Remedies for containing the dust such as dust barriers were discussed. This meeting was preceded by a letter from architect Hrand Du Valian to Dan Billingsley dated February 15, 199[4], where Du Valian complained that Floors & More was not keeping the concourse clean as required by contract. Then on April 28, 1994, Du Vahan wrote another letter to Dan Billingsley where he referred to a complaint filed with the Airport and the State Health Department “regarding the dust which your firm allowed to openly filter through the concourse” and added:

As we have discussed on numerous occasions, during two preconstruction meetings, via phone conversations and letters (not to mention warnings by the airport administration and maintenance departments) as stated on Sheet T-l of the contract documents “. . . contractor shall nightly erect an airtight dust partition of plastic sheeting . . .”. I do not know how to state this more plainly. This is a very important issue. To avoid a litigious situation (that as you can now plainly understand, may very well arise because of the non-compliance on the part of your firm to all of the requirements of the contract documents) please make a renewed effort and inform each new worker that compliance with the contract documents is a must. (Italics ours.)

Next, after the Kelley accident, Du Valian wrote the following to Dan Billingsley on August 8, 1994:

Bill Flowers [acting airport manager] indicated to me yesterday, that he was very disturbed by the condition of the tile at the concourse. For a long time there has been tape, and dirt from construction on the tile throughout the concourse. This creates a very dirty atmosphere for airport patrons. He has requested that this be cleaned by Monday 8/15/94. If this is not taken care on (sic) by your crews by Monday morning he will have his maintenance department clean the floor and charge you for their time. Please notify me how you want this issue resolved. (Emphasis ours.)

There obviously was a history of a dust problem at the Airport in conjunction with the replacement of the concourse tile. Rule 406(a) of the Arkansas Rules of Evidence provides:

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

In light of evidence that the Airport was relying on Floors & More to clean up the dust and that Floors & More routinely failed to rid the concourse of dust and dirt, we conclude that a fact question has been raised under Ark. R. Evid. 406(a) as to whether the tile was swept and vacuumed on the date of the accident — July 19, 1994. See 1 McCormick on Evidence § 195, at 828-30 (4th ed. 1992).

Because there are material fact questions which need to be resolved concerning the presence of dust on the tile and the failure of the appellees to clean the premises, we reverse the summary judgment and remand this matter to the trial court for further proceedings.

Reversed and remanded.

       The letter appears to erroneously cite 1993 as the year it was written.


author: Annabelle Clinton Imber, Justice.

text:
    David NEWMAN v. STATE of Arkansas
    CR 96-685
    939 S.W.2d 811
    Supreme Court of Arkansas
    Opinion delivered February 17, 1997
    [Petition for rehearing denied March 24, 1997.]

      Larry J. Steele, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

This is a criminal case where the appellant, David Newman, was convicted of the delivery of controlled substances. Newman relies upon six points of error in this appeal. We affirm for the reasons stated herein.

On December 1, 1994, Sheriff Richard Rapert, working for the Drug Task Force of the Third Judicial District, prepared two confidential informants, Mike Sanders and Patricia Williams, to make a controlled drug buy from the appellant, David Newman. Williams was Newman’s ex-wife. Rapert wired them with body microphones in order to make a tape recording of their conversations, and gave them purchase money. Rapert also searched them for the presence of drugs. Joe Grooms, a marshall in Maynard and Sanders’s half-brother, aided Rapert by searching Williams’s vehicle for drugs.

Williams and Sanders drove to Newman’s house, followed by Rapert and Grooms. No one was at Newman’s residence. They then proceeded to Donald Stacy’s house. Newman was there and Williams went inside to initiate the purchase. Newman came outside and met Sanders. Sanders asked Newman “if he had some smoke.” Newman explained that he had methamphetamine and marijuana available. Sanders ultimately bought a quantity of marijuana and methamphetamine for a total of $75. Rapert later met with the informants and Williams handed him two bags containing methamphetamine and marijuana.

The conversation between Newman and Sanders was recorded on tape. Rapert and Grooms, who both knew Newman, testified that they recognized the voice on the tape as Newman’s. The testimony at trial conflicted as to where the actual transaction took place. Sanders testified that the sale took place outside of Stacy’s residence, while Williams said that they drove back to Newman’s house to make the sale. On re-direct, Williams conceded that she did not know where the sale took place.

David Newman was tried and convicted of delivery of methamphetamine and delivery of marijuana. The jury imposed sentences of forty years and ten years, respectively, along with $50,000 in fines. On appeal, Newman raises six points of error.

1. Disqualification of jurors.

Newman’s first argument is that the trial court erred in failing to disqualify prospective jurors. The week before his trial, Newman was tried in another drug case involving delivery of methamphetamine. This prior trial resulted in a mistrial due to evidence that was improperly admitted. Nonetheless, the trial court utilized the same jury panel to select jurors in both trials, excluding those thirteen jurors that were seated in the prior trial from the panel in the present case. Of those present in the panel, only two prospective jurors had not been a part of the panel the prior week.

Newman moved to quash the panel, arguing that they were tainted by their knowledge that Newman had been charged in another matter and by their voir dire the previous week. The trial court denied the motion and voir dire of the panel proceeded.

Jurors are presumptively unbiased and the burden is on the appellant to prove otherwise. Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996). Moreover, a trial court’s findings regarding juror bias will not be reversed absent an abuse of discretion. Id.

In Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995), members of the jury panel had been through voir dire during the separate trial of one of the appellants’ codefendants. At the trial the appellants moved to quash the panel arguing that the entire panel had been tainted through their exposure to the prior voir dire. The trial court denied the motion and this court affirmed.

While the Goins court noted that defendants could exclude those jurors who served on jury trials of codefendants, “the right has not been extended to exclude potential jurors who have not actually served as jurors in a prior trial involving the same offense.” Id. (citing McClendon v. State, 316 Ark. 688, 875 S.W.2d 55 (1994)). It was undisputed that all of the jurors who actually sat in the prior trial were excluded from the venire. Furthermore, the trial court allowed the parties to pursue the possibility of bias in voir dire, and at no time did the appellants challenge a juror for their presence during voir dire in the codefendant’s case. Moreover, on appeal, the appellants failed to identify a juror who should not have been seated. In sum, the appellants failed to meet their burden to prove that the jury was biased and the Goins court concluded that the trial court did not abuse its discretion in refusing to strike the jury panel.

In the present case, all of the jurors seated in the prior trial were excluded from the venire, and the trial court allowed counsel to pursue the possibility of bias in voir dire. Newman failed to explore the possibility of juror bias with regard to their presence in the prior voir dire, except for asking one question about whether anyone had not been present the prior week. Furthermore, Newman failed to identify any particular jurors who were biased. Newman also failed to present evidence that any jurors were biased by their presence during voir dire the previous week. We find that the trial court did not abuse its discretion by failing to quash the jury panel.

2. Scope of cross-examination.

Newman’s second argument is that the trial court erred in limiting his cross-examination of Marvin Poe, coordinator of the Third Judicial Drug Task Force. At trial, the State called Marvin Poe, the coordinator of the Third Judicial Task Force, to establish a chain of custody for the drug evidence. Defense counsel attempted to cross-examine Poe concerning the lack of drug arrests of professionals and the “holding” of drug cases until election time for county officials. However, the trial court ruled that “I’m not going to sit up here and listen to stuff that’s just a general browbeating of the drug task force unless you can relate it to this man’s case.”

On appeal, Newman argues that the evidence concerned the motive and credibility of drug task force members, and that “[pjursuant to Rules 401, 402 and 403 of the Arkansas Rules of Evidence, this evidence was more probative than prejudicial and should have been admitted.” However, a trial court has wide latitude to impose reasonable limits on cross-examination based upon concerns about confusion of issues or interrogation that is only marginally relevant. Gordon v. State, 326 Ark. 90, 931 S.W.2d 91 (1996). This court will not reverse the trial court’s ruling absent an abuse of discretion. Id; Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994).

Here, Poe’s proffered testimony concerned when and against whom the task force decided to file charges. Poe testified that he never waited until a particular time to file cases, but that “I don’t remember, something may have been said to the effect, ‘Can you file some charges now’ or something, you know, I don’t know, but it’s possible.” Poe also testified that he had never filed any cases against doctors or lawyers, but that he had two cases pending against farmers.

Clearly, the relevance of this testimony to Newman’s case was marginal at best. While Newman makes the vague assertion that this testimony was relevant on motive and credibility, it cannot be said that the trial court abused its wide discretion in imposing reasonable limits on cross-examination by excluding the proffered testimony. Accordingly, we affirm as to this point.

3. Admissibility of tape recording.

Newman’s third argument is that the trial court erred in admitting a tape of the alleged sale upon which these charges are based, which tape also contained statements concerning other sales that were the basis of other charges. For this point, Newman argues that the trial court abused its discretion in admitting the tape recording of the conversation between him and Sanders. According to Newman, the probative value of the tape was substantially outweighed by the danger of unfair prejudice under Ark. R. Evid. 403, given that the tape made references to other drug transactions.

While a transcript of the tape recording is found in the record, Newman has failed to abstract the transcript or what was recorded on the tape. The record on appeal is confined to that which is abstracted, and failure to abstract a critical matter precludes this court from considering the issue on appeal. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995). Thus, it is impossible for this court to review the contents of the tape in order to determine whether the trial court abused its discretion. We accordingly affirm without reaching the merits.

4. Adequacy of chain of custody.

Newman’s fourth argument on appeal is that the trial court erred in admitting evidence over his objection based on chain of custody. Newman objected to the introduction of State’s Exhibits 1, 1A, IB, 1C, ID, and IE based on chain of custody, and now argues on appeal that the trial court erroneously overruled his objection.

Richard Rapert testified that he recognized State’s Exhibit ID and IE as the two bags of marijuana and methamphetamine that he received from Williams following the controlled buy. Rapert further stated that he placed State’s Exhibit ID into an envelope, State’s Exhibit IB, and that he placed State’s Exhibit IE into another envelope, State’s Exhibit 1C. Then he placed the two smaller envelopes into a larger envelope, State’s Exhibit 1A. Attached to State’s Exhibit 1A was State’s Exhibit 1, a state crime laboratory submission sheet that had Rapert’s handwriting on it.

Rapert further explained that Marvin Poe opened State’s Exhibit 1A a week prior to trial in order to determine if the evidence numbers on the smaller envelopes matched the numbers found on the larger envelope. He said that Poe did this in his presence. The smaller envelopes containing the contraband, State’s Exhibits IB and 1C, were not opened at the time.

Michael Stage, a chemist with the state crime lab, testified that he recognized the exhibits as those upon which he performed a chemical analysis. His tests showed that State’s Exhibit ID was a baggie containing 4.4 grams of marijuana, while State’s Exhibit IE was a ziplock bag containing .15 grams of methamphetamine hydrochloride. Stage further testified that after he performed the chemical analysis, he resealed the bags and placed them back inside their respective envelopes for resubmission to the evidence room at the state crime lab. He recognized the seal that he placed on the outside envelope and the case number and date he wrote on it.

Stage also testified that he was present when Poe opened State’s Exhibit 1A earlier in the week. The following colloquy then occurred between defense counsel and Stage:

Q: There were some items actually missing from that bag that were supposed to be in that bag [State’s Exhibit 1A], weren’t there?
A: At the time there was, yes.
Q: Did you make a list of the items that you found in the bag at the time that it was opened? Did you inventory the bag, so to speak, this past week when it was opened?
A: I didn’t make any notes. I remember what was missing, yes.
* * *
Q: And you have no idea where this bag has gone this past week since, since you opened it.
A: No.
Q: So really, it’s your testimony the seal on the, on the bag itself which contained the other evidence, items of evidence, was broken before court today by yourself.
A: Are we talking about the right case? Or was that another?
Q: I’m, I’m talking about 1A.
A: I believe there was another case that this happened to.
[BENCH CONFERENCE]
STAGE CONTINUING: It was not this envelope that was in question that day.
Q: But 1A is the envelope that, that was previously opened in the Judge’s chambers, is that correct?
A: No.
Q: That’s not the envelope?
A: This one was opened, yes. But this was not the one in question.

On redirect examination, Stage explained that State’s Exhibit 1A had been opened while looking for evidence used in another case, and that the evidence was not found in the envelope.

Marvin Poe then testified that he recognized State’s Exhibit 1A, and that he had opened it the prior week to see if the evidence numbers found on State’s Exhibit IB and 1C matched the laboratory control number found on the attached laboratory submission sheet, State’s Exhibit 1. He then placed the smaller envelopes back in the larger envelope, and he signed and dated it to reflect when and where he opened it. He returned State’s Exhibit 1A to the Drug Task Force evidence locker in Newport, Arkansas. The day before trial, Poe retrieved the bag from the evidence locker and placed it with his secretary (and wife), Judy Poe, to be picked up hours later by Rapert.

Finally, Judy Poe testified that she recognized and received State’s Exhibits 1 and 1A from Michael Poe and that she passed them along to Rapert the day before trial. Rapert ultimately testified that he received State’s Exhibit 1A from Judy Poe the day before trial at the Drug Task Force office.

Evidentiary matters regarding the admissibility of evidence are left to the sound discretion of the trial court and rulings in this regard will not be reversed absent an abuse of discretion. Lee v. State, 326 Ark. 229, 931 S.W.2d 433 (1996); Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995). This court has consistently stated that the purpose of establishing a chain of custody is to prevent the introduction of evidence that is not authentic or that has been tampered with. Id. However, the trial court must be satisfied within a reasonable probability that the evidence has not been tampered with; it is not necessary that the State eliminate every possibility of tampering. Id.

In the present case, we conclude that the State established within a reasonable probability that the evidence had not been tampered with. While the somewhat confusing testimony of Stage at first established that items were missing from State’s Exhibit 1A, he later clarified that he was referring to another matter. State’s Exhibits IB and 1C, the envelopes containing the contraband, were not themselves opened when Poe examined State’s Exhibit 1A the week prior to trial. Moreover, Rapert ultimately confirmed that State’s Exhibit’s ID and IE were the substances that he received from Patricia Williams. We therefore conclude that the State established an adequate chain of custody and that the trial court did not abuse its discretion in admitting the State’s exhibits.

5. AMCI 2d 9401-02 Jury Instructions.

Newman’s fifth argument is that the trial court erred in instructing the jury during the sentencing phase that he would do one-sixth of the time received. During the sentencing phase of trial, the trial court instructed the jury with regard to the range of possible punishment and Newman’s possible parole eligibility. See AMCI2d 9401-02. Newman objected to the bifurcated nature of the proceedings, arguing that informing the jury of possible parole eligibility denied him “due process of law and equal protection because it preconceives an idea of what is going to happen.” Newman also proffered jury instructions that combined the guilt and sentencing determinations.

Following Newman’s constitutional objection to the bifurcated proceedings, the trial court did not issue a ruling. Newman proffered his proposed jury instructions, after which the trial court inquired, “Anything else?” Then, Newman moved for a directed verdict, challenging the sufficiency of the State’s proof on the element of delivery. After this motion, the trial court simply responded, “Uh-huh,” and proceeded to instruct the jury.

To preserve arguments for appeal, even constitutional ones, the appellant must obtain a ruling. Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996); Bonds v. State, 310 Ark. 541, 837 S.W.2d 881 (1992); State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992). Because Newman failed to obtain a ruling from the trial court on his objection to the bifurcated proceedings, he has not preserved that issue for appeal. Thus, this court must summarily affirm on this point for failure to obtain a ruling below.

6. Validity of arrest warrant.

Newman’s final argument is that the trial court erred in failing to suppress the evidence as charges filed against him were based on the unsworn statement of a confidential informant. For this point, Newman challenges the validity of the arrest warrant issued against him, because its supporting affidavit executed by Rapert contained unsworn statements made by confidential informants.

Newman first contends that “he was denied due process and equal protection under state and federal constitutions because of the manner in which charges were filed against him.” However, Newman fails to explain with any convincing legal argument how the “manner in which charges were filed against him” deprived him of due process or equal protection of the laws. Moreover, he fails to cite to any authority for this proposition. Thus, this court must affirm for failure to cite to authority. See Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996); Roberts v. State, 324 Ark. 168, 919 S.W.2d 192 (1996).

Newman further contends that an arrest warrant’s supporting affidavit containing statements from confidential informants must also include sworn statements from those informants. He relies on Ark. R. Crim. P. 7.1, governing the basis for the issuance of an arrest warrant, and Davis v. State, 293 Ark. 472, 739 S.W.2d 150 (1987), where this court observed inter alia that the State has the burden of showing that an arrest warrant’s supporting affidavit is in compliance with the law.

Simply put, these authorities do not support Newman’s contention. Here, Rapert applied for an arrest warrant under oath, stating that two confidential informants met with Newman and purchased marijuana and methamphetamine from him. Supporting affidavits commonly contain hearsay statements from informants and Rule 7.1 simply does not require that such statements be made under oath. We accordingly find that the trial court did not err in denying the motion to suppress, and affirm as to this point.

Affirmed.