author: Robert H. Dudley, Justice.

text:
    Samuel Bruce BAGGETT, Jr., Bruce Baggett III, and Mark Baggett, d/b/a S & B Farms v. BRADLEY COUNTY FARMERS COOPERATIVE and Southern Farmers Association, Inc.
    90-4
    789 S.W.2d 733
    Supreme Court of Arkansas
    Opinion delivered June 4, 1990

      Bill G. Wells, for appellants.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellees.
   Robert H. Dudley, Justice.

Appellants, plaintiffs below, filed suit against appellees. After answers were filed, interrogatories were propounded, depositions were taken, and affidavits were filed, the appellees moved for summary judgment. The trial court set a day certain for hearing the motion. Before that date, however, the trial court granted the motion. We reverse and hold that a trial court should not grant summary judgment before the day scheduled for a hearing on the motion unless it clearly appears that the non-moving party cannot produce proof contrary to the moving party’s proof.

Appellants own a hog feeding operation. Appellees sell animal feed. On November 17,1988, appellants filed suit alleging that appellees had negligently allowed cattle feed to become mixed with the hog feed they sold and delivered to appellants; that this negligence caused appellants’ hogs to become ill and, as a direct result, some hogs died and others were stunted in growth. Appellees filed general denials. Appellees propounded interrogatories. Appellants answered. Appellees objected to certain interrogatories propounded by appellants. Appellants, plaintiffs, filed a motion for summary judgment contending that appellees had admitted liability. They attached a letter from appellees’ nutritionist stating, “We have admitted our negligence by allowing some dairy pellets to get mixed in with your hog feed. However, it is highly unlikely that this could have caused any disease.” Appellees submitted an affidavit from the nutritionist stating that the feed did not cause the disease. Appellees, defendants, also moved for a summary judgment and attached parts of the deposition of the veterinarian who treated the hogs. The veterinarian testified, in part, that cattle feed could cause enough change in the environment inside the hogs’ intestines to cause the particular illness to erupt. He further stated that he could not be sure that ingesting the cattle feed caused the hogs’ illness without knowing how much cattle feed they ate. There was other testimony submitted with the motion which we need not detail. On September 1, 1989, the trial judge filed an order setting a hearing on all pending motions for October 2,1989. On September 20,1989, appellants filed supplemental answers to interrogatories, one of which stated that they might call a veterinarian, Dr. McDaniel, to testify. On September 25, 1989, the trial court granted appellees’ motion for summary judgment.

The order granting summary judgment was in error for two reasons. First, a motion for summary judgment should not be granted before the day scheduled for a hearing unless it clearly appears that the non-moving party could not produce proof contrary to the moving party’s proof. Ragar v. Hooper, 298 Ark. 353, 767 S.W.2d 521 (1989). In this case it is not clear that appellants could produce no further proof.

Second, there was a genuine issue of fact for trial. The standard of review for summary judgments is stated in Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986):

The principle of law which we must follow in review of summary judgment decisions is well established. On such motions the moving party has the burden of demonstrating that there is no genuine issue of fact for trial and any evidence submitted in support of the motion must be reviewed most favorably to the party against whom the relief is sought. Summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable men might differ.

Summary judgment is an extreme remedy. Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979). The object of a summary judgment is not to try the issue but to determine if there are issues to be tried. Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1969). If there is any doubt whatever, it should be denied. Southland Ins. Agency v. Northwestern National Ins. Co., 255 Ark. 802, 502 S.W.2d 474 (1973).

A reasonable inference which can be drawn from the affidavits and depositions is that the hogs’ ingestion of the cattle feed could have triggered the illness by changing the environment in their intestines and activating the latent organisms which were already present. Because any doubts concerning a question of fact are to be resolved against the moving party, the evidence before the trial judge was sufficient to create a question of fact as to whether the cattle feed mixed with the hog feed could have caused appellants’ hogs’ illness. It is enough for purposes of resisting the motion for summary judgment that appellants had put before the court sufficient evidence from which an inference of causation could be drawn. It was not necessary for appellants to establish their case by a preponderance of the evidence or by any other standard of proof. They were only required to establish that there was a genuine issue for trial.

The trial judge also erroneously ruled that it was up to the appellants, the non-moving party, to offer proof which would have negated all other possible causes of the illness. That standard applies to product liability cases, see Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988), but not to simple negligence cases. The amended complaint in this case contained one count alleging negligence and another alleging product liability.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Geneva Lee BALDWIN v. CLUB PRODUCTS COMPANY and Fireman’s Fund Insurance Company
    89-329
    790 S.W.2d 166
    Supreme Court of Arkansas
    Opinion delivered June 4, 1990
    [Rehearing denied July 9, 1990.]

      J. R. Nash, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellees.
   Robert H. Dudley, Justice.

Appellant filed a motion in circuit court seeking to have the circuit court issue an order directing appellees to comply with an order of the Worker’s Compensation Commission. The appellees responded with a motion to dismiss and for sanctions and costs pursuant to ARCP Rule 11. The trial court held it was without jurisdiction to hear appellant’s motion and denied appellees’ request for sanctions. Both parties appeal. We affirm on both direct and cross-appeal.

Appellant suffered a total and permanent injury in 1977. See Baldwin v. Club Products Co. & Fireman’s Fund Ins. Co., 270 Ark. 155, 604 S.W.2d 568 (Ark. App. 1980). After further proceedings the full commission issued an opinion and order in 1984 directing that; “Any and all reasonable and necessary medical and related expenses shall be borne by respondents [appellees].” Pursuant to the order appellees have paid all of the customary medical bills. Appellant now seeks to have appellee pay for psychiatric care, treatment by an ophthalmologist, and treatment by a pain clinic. Appellees do not agree such treatment is reasonable and necessary. After appellees questioned this treatment, the appellant filed a “Motion to Enforce Judgment” in the circuit court. The motion prayed that the court issue an order directing the appellees to “provide the care” ordered by the Commission. The trial court held it was without jurisdiction to act.

Appellant contends that the trial court misconstrued Ark. Code Ann. § 11-9-712 (1987). The argument is without merit. That statute provides that a certified copy of a “final compensation order or award” of the Worker’s Compensation Commission may be entered in the judgment record of a county and, after entry by the circuit clerk, is enforceable as are judgments and liens of the circuit court. The statute is for the registration affinal compensation orders or awards. “Compensation” means “the money allowance payable to the employee. . . .” Ark. Code Ann. § 11-9-102(9) (1987). “Final” may be generally said to mean an appealable order. Ark. Code Ann. § 11-9-711 (1987). Thus, the statute at issue, Ark. Code Ann. § 11-9-712 (1987), means that a money allowance, or liquidated award, which has become final, may be filed with the circuit clerk, and it then becomes a judgment and lien the same as a circuit court judgment. The statute does not in any way give the circuit court jurisdiction to determine what is a “reasonable and necessary” expense pursuant to an order or award of the Worker’s Compensation Commission. Thus, we affirm on direct appeal.

On cross-appeal the cross-appellant argues that the trial court erred in refusing to impose sanctions. The imposition of sanctions is a matter to be handled with circumspection, and the trial court’s decision is due substantial deference. Bratton v. Gunn, 300 Ark. 140, 777 S.W.2d 219 (1989). The order appealed from in this case was entered on August 2, 1989. Bratton was handed down on October 9,1989, so the trial court had no way of knowing that this Court would take the opportunity afforded by Bratton to note:

the salutary purposes of Rule 11 and to further state the courts’ interest in fair application of it. With that in mind, and notwithstanding the language in ARCP Rule 52 that makes findings of fact and conclusions of law unnecessary in decisions on motions, we believe the better practice is for the trial court to give an explanation of its decision on Rule 11 motions sufficient for the appellate courts to review.

Although we do not know the reason the trial court denied the motion for sanctions, after reviewing the appellant’s abstract and argument, we are convinced the appellant’s attorney was making a good faith effort to assist his client in compliance with the statute. Accordingly, we affirm the trial court’s denial of the motion to impose sanctions.

Affirmed on direct and cross-appeal.


author: Robert H. Dudley, Justice. Tom Glaze, Justice,

text:
    Betty SPIRES, d/b/a Betty’s Liquor and Cynthia S. Buckwalter, d/b/a C & D Grocery v. MEMBERS OF THE ELECTION COMMISSION of Union County, Arkansas, Et Al.
    89-281
    790 S.W.2d 167
    Supreme Court of Arkansas
    Opinion delivered June 4, 1990

      Shackleford, Shackleford & Phillips, P.A., for appellants.

      Tom Wynne, Prosecuting Attorney for Thirteenth Judicial Circuit Court, for appellees.
   Robert H. Dudley, Justice.

Appellants, Betty Spires and Cynthia Buckwalter, liquor store owners, filed a complaint alleging that a local option election was invalid. Appellees, members of the county election commission, filed a motion to dismiss because: (1) the complaint failed to state facts upon which relief could be granted, and (2) the court lacked jurisdiction because the complaint was filed outside the time limit for challenging a local option election. The trial court granted the motion to dismiss on the second basis, lack of jurisdiction to hear the complaint because it was not filed in time. The trial court reached the right result.

Appellants argue that this case should not be reviewed as an election contest, but, instead as a suit for declaratory judgment. The reason for the argument is if this is not an election contest, they would not be subject to the shorter period of limitation. While the relief prayed, “that the election ... be declared null and void,” indicates it is an election contest, it is an issue which we do not reach because the complaint failed to state facts upon which relief can be granted.

The complaint recites that a local option election was held in Union precinct, and that, as a result, the area has been declared dry. The only allegation of irregularity in the election is that the “election is invalid as there is no duly established precinct known as Union Precinct in existence as required by Ark. Code Ann. § 7-5-101.” This allegation is a conclusion of law and not a statement of facts upon which relief can be granted.

ARCP Rule 12(b)(6) provides for the dismissal of a complaint for “failure to state facts upon which relief can be granted.” Rule 12(b)(6), which provides for the testing of the complaint, must be read in conjunction with Rule 8, which sets out the requirements of a complaint. Rule 8 provides: “[A] complaint. . . shall contain. . . (1) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief.”

This complaint states the conclusion that a district was not established as required by Ark. Code Ann. § 7-5-101 (1987). It does not state whether the alleged deficiency is a failure of the county board of election commissioners to keep records as required by the statute, or a failure to accurately describe the boundaries, or a failure to file a copy of the order with the county clerk, or a failure to give notice of a change in boundaries, or when such irregularities occurred, or whether elections previously have been held in the precinct. Thus, it cannot be determined from the complaint whether appellants had a pre-election remedy, and waived it, and then, after losing the election, sought this post-election remedy. If that should be the case, as was strongly suggested in the oral argument, appellees may have waived their right to contest the election. Because the complaint does not meet the ARCP Rule 12(b)(6) test, and the trial court could not determine the factual basis of the complaint, the trial court should never have reached the issue of the time limitation for contesting the election. Still, the complaint was correctly dismissed.

Appellants also allege that their rights to due process and equal protection were denied. The allegation is:

To the extent that Act No. 108 of the Arkansas Acts of 1935 or Initiated Measure No. 1 of the Initiated Measures of 1942 apply to this case, the same violate plaintiffs’ rights to due process and equal protection under the law, and are invalid as applied to plaintiffs under Article 2, Sections 3 and 8 of the Arkansas State Constitution and the Fifth and Fourteenth Amendments to the United States Constitution.

The foregoing averment likewise does not contain a statement of facts in ordinary and concise language which shows that the pleaders are entitled to relief.

Further, it would have been error for the trial court to have heard the allegation of the unconstitutionality of the acts without notice being given the Attorney General. Ark. Code Ann. § 16-11 l-106(b) (1987); City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982), cert. denied 462 U.S. 1111 (1983).

The dismissal in this case should have been for failure to state facts upon which relief could be granted and should have been without prejudice. However, it was dismissed on a different basis, and the dismissal was with prejudice. Accordingly, as is our practice in such cases, we affirm the result but modify to the extent the dismissal is without prejudice. Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984).

Affirmed as modified.

Glaze, J., concurring in part and dissenting in part.

Tom Glaze, Justice,

concurring in part and dissenting in part. In reaching the result it does, the majority court ignores the election cases that control the sole issue involved in this litigation. Simply put, appellants claim “Union Precinct” was invalid because that precinct was never formally established; therefore, the election results voting that precinct “dry”, were null and void. This court, in Goodall v. Adams, 277 Ark. 261, 640 S.W.2d 803 (1982), answered this precinct validity issue. There, citizens successfully filed a petition seeking a wet-dry election in Wilborne West Precinct; opponents argued that the precinct was not formally established under Ark. Stat. Ann. § 3-601 (Repl. 1976) [now Ark. Code Ann. § 7-5-101 (1987)], so the local option election in the precinct could not be valid. This court disagreed, stating the following:

The precinct in question has existed in fact through at least three elections. Its boundaries are not questioned by anyone. It has been recognized by the election officials and voters as a valid precinct and the only question of legal insufficiency is the lack of a formal order. As the trial court observed, such an order could be entered at any time. It is a mere technicality.

Here, appellants, in oral argument and in their brief, conceded that, while the county board of election commissioners had not formally entered into the record the boundaries of Union Precinct as required by § 7-5-101, Union Precinct had been recognized and used in three prior elections over a period of six years. Accordingly, Union Precinct and its election results were not invalid under the rationale and holding of Goodall.

Another reason exists why appellants should not prevail in their argument. In Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989), we applied the well-settled rule that before an election’, the provisions of election laws are mandatory, and after the election, the provisions are merely directory. In the instant case, the appellants failed to question prior to the election the county election commissioners’ failure to comply with the formal requirements when establishing Union Precinct under § 7-5-101(c). Because appellants waited until after the election to challenge Union Precinct’s validity, the requirements in § 7-5-101 (c) were only directory. In other words, the filing or recording of the Union Precinct boundaries in accordance with §7-5-101 (c) was no longer mandatory after the election was held and the failure to comply with § 7-5-101 (c) could not be used to invalidate an election. Appellants simply had no cause of action cognizable under Arkansas’s post-election contest procedures. Instead, appellants’ remedy was to seek their relief before, not after, the election.

The foregoing case law resolves the primary issue on appeal, and accordingly, the trial court’s dismissal of the appellants’ complaint should be affirmed without modification. The majority opinion notes that the appellants also alleged certain constitutional claims. Basically, they argue that Arkansas’s law, which provides for a ten-day time limit for filing election contests in local option elections, is so restrictive that it virtually denied them due process and equal protection under the law. Again, this constitutional challenge should have been initiated prior to the election rather than to raise it after the appellants learned they had lost the election and decided to invoke such a constitutional claim under the guise of a post-election contest proceeding.

Appellants could have raised their constitutional argument when the citizens, who sought the local option election, filed their petitions with the county clerk. See Ark. Code Ann. § 3-8-204 (1987). Union Precinct had been used in prior elections, and if appellants had obtained legal counsel when these petitions were first filed, they could have timely and properly raised the issues they now belatedly raise after the election results were certified.

In sum, appellants had ample opportunity to be heard on these matters prior to the election, but failed to avail themselves of that opportunity. Once an election is held and its votes are canvassed and certified, those results should not be so easily challenged and set aside. That is the reason Arkansas case law limits those matters that can be raised in election contest proceedings and requires parties to seek relief prior to the holding of the election. Here, appellants failed to bring a timely suit and their claims were justifiably denied. Under these circumstances, this court’s decision should end this litigation, and the majority opinion is wrong in leading the appellants to believe they still may have a viable cause of action.

Hays, J., joins.

       The trial court actually dismissed the appellants’ suit because they failed to file their election contest within the ten-day period required under Ark. Code Ann. § 3-8-309 (1987). While I disagree with the reason for its dismissal, I would still affirm its dismissal with prejudice for the reasons set out in my opinion.


author: David Newbern, Justice.

text:
    Pier L. CASOLI v. STATE of Arkansas
    90-35
    790 S.W.2d 165
    Supreme Court of Arkansas
    Opinion delivered June 4, 1990

      William Isaacs, for appellant.

      Steve Clark, Att’y Gen., Oían W. Reeves, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Pier L. Casoli, the appellant, sought a writ of prohibition and mandamus from the circuit court to prevent a trial from taking place in Huntsville Municipal Court and to have returned to him two appearance bonds which had been forfeited. The mandamus issue on the bond forfeitures is not argued in Casoli’s brief now before us. With respect to the prohibition issue, he contended his right to a speedy trial would be violated if he were tried on a charge of driving while intoxicated, third offense. The circuit court denied the writ. The denial of the writ is not an appealable order, but we may treat the appeal as a petition to this court for a writ of prohibition, Robinson v. Sutterfield, 302 Ark. 7,786 S.W.2d 572 (1990). We choose not to treat the appeal as a petition to this court, and we dismiss the appeal.

The circuit judge apparently was not asked to make detailed findings of fact, and thus the facts are not recited in the order denying mandamus and prohibition. We are unable to ascertain the facts from the record before us. For example, the record before the circuit court contained two municipal court docket sheets, one of which contains more information about relevant dates than the other. We cannot tell whether the augmented one is official. There is also a dispute as to how to treat time which passed after a bond forfeiture which apparently was agreed to by the municipal judge on condition that Casoli leave and not return to the court’s jurisdiction. We cannot tell from the record whether Casoli absented himself from the jurisdiction, thus tolling the speedy trial time, and if so, for how long.

Unlike Callender v. State, 263 Ark. 217, 563 S.W.2d 467 (1978), this is not a case where facts showing a violation of the speedy trial right are clear. Nor is this case like Divanovich v. State, 273 Ark. 117, 617 S.W.2d 345 (1981), where we were able to say the petitioner had not presented facts sufficient to show a violation of Ark. R. Crim. P. 28 or the broader Sixth Amendment right pursuant to the test prescribed in Barker v. Wingo, 407 U.S. 514 (1972).

Appeal dismissed.


author: Tom Glaze, Justice.

text:
    Patricia GRAHAM v. Charles W. INLOW, Carol J. Inlow, and Freda Inlow
    90-45
    790 S.W.2d 428
    Supreme Court of Arkansas
    Opinion delivered June 4, 1990
    [Rehearing denied July 2, 1990.]

      Howard L. Slinkard, P.A., for appellant.

      Cypert, Crouch, Clark & Harwell, by: Charles L. Harwell, for appellee.
   Tom Glaze, Justice.

This second appeal stems from our earlier reversal and remand of this partition suit case wherein we held valid a deed from Robert Inlow to his second wife, Freda, and his three children. See Graham v. Inlow, 296 Ark. 165, 753 S.W.2d 277 (1988). Robert had two children, Charles and Carol, by his wife Freda, and he had another child, Patricia Graham, by his first wife. In remanding this case, the trial court was placed in the position of reconsidering Graham’s request for partitioning the parties’ one-fourth respective interest in the 287 acre farm. The chancellor found the property could not be partitioned in kind and ordered the sale of the farm. The chancellor further held that Graham was entitled to certain rental income and timber sale proceeds after her commencement of the suit as well as attorney fees and costs in connection with prosecuting this partition action. He also awarded Freda the sum of $70,000 for improvements she made on the disputed property. Graham appeals and the Inlows cross appeal from the awards made by the chancellor.

In the first point, the appellant argues that the chancellor erred in awarding reimbursement for improvements made on the property for two reasons: (1) Freda did not show that the improvements were made in good faith and that she was the sole owner of the property as required by the Betterment Statute, Ark. Code Ann. § 18-60-213 (1987); (2) Freda failed to present any testimony to show the improvement’s enhanced value to the land. Because we agree with appellant’s second argument on this point, we reverse and remand.

The Betterment Statute, Ark. Code Ann. § 18-60-213(a), provides as follows:

If any person believing himself to be the owner, either in law or equity, under color of title has peaceably improved, or shall peaceably improve, any land which upon judicial investigation shall be decided to belong to another, the value of the improvement made as stated and the amount of all taxes which have been paid on the land by the person, and those under whom he claims, shall be paid by the successful party to the occupant, or the person under whom, or from whom, he entered and holds, before the court rendering judgment in the proceedings shall cause possession to be delivered to the successful party.

In awarding Freda $70,000 for reimbursement for improvements made by her, the chancellor held that the Betterment Statute does not apply to cotenants but that the underlying principles and theories are analogous to the relief under the common law.

We have held that the Betterment Statute applies to tenants in common. Wallis v. McGuire, 234 Ark. 491, 352 S.W.2d 940 (1962). However, the chancellor was correct in that the statute does not apply to tenants in common in this type of action. Section 18-60-213 is found in the Code under the subchapter for ejectment and trespass, and applies to cotenants who are involved in such actions. In the present case, however, we are involved with a partition suit governed in the Code by the subchapter for partition and sale of land, specifically Ark. Code Ann. § 18-60-401 (1987).

It is well settled that a tenant in common has the right to make improvements on the land without the consent of his cotenants; and, although he has no lien on the land for the value of his improvements, he will be indemnified for them, in a proceeding in equity to partition the land between himself and cotenants, either by having the part upon which the improvements are located allotted to him or by having compensation for them, if thrown into the common mass. Bowers v. Rightsell, 173 Ark. 788, 294 S.W. 21 (1927); see also Welch v. Burton, 221 Ark. 173, 252 S.W.2d 411 (1952); Kelley v. Acker, 216 Ark. 867, 228 S.W.2d 49 (1950). The improvements must be made in good faith and have benefit to the premises. Thompson, Real Property, § 5295 (1957). See generally 59A Am. Jur. 2d Partition § 232 (1987); see also Flucht v. Villareal, 28 Ark. App. 1, 770 S.W.2d 187 (1989).

Here, the record reflects that the appellee Freda made improvements which benefited the land beginning in 1979. The majority of those improvements were in the form of repairs and renovations to already existing buildings such as barns. There is no showing that these benefits were not made in good faith. However, because tenants in common might be improved out of their property, the cotenant can only receive the enhancement value of the improvement to the property. This limitation is analogous to the requirement found in the Betterment Statute. The proper measurement is the difference between the value of the land without the improvements and the value of the land with the improvements in their then condition. Wallis, 234 Ark. 491, 352 S.W.2d 940.

Appellee Freda attempted to prove this value through the testimony of a real estate appraiser, Mr. Hinshaw. Hinshaw testified about improvements made to each separate itemized item and the enhanced value of those improvements on each item. He then explained that this value was not the cost value but the contributory value. Hinshaw explained that the contributory value was determined by comparing a similar piece of property without a building, like the building improved on the land in question, to the value of the land in question with the building. In addition, Hinshaw gave testimony about the difference in value of raw land and the value of the land in question with buildings on it.

Hinshaw’s testimony showed the court the following things: (1) the difference in value between raw land and land with buildings; (2) the contributory value of a barn, for instance, to the land, which is figured by knowing the selling price of a similar piece of land without a barn, and (3) the difference in value or enhancement of the building before and after the improvement. However, as shown by the following exchange on cross-examination, Hinshaw did not testify as to the difference in value of property without improvements and the value of property after improvements.

Q So you’re not prepared to tell me and this Court how much these improvements that you made reference to here . . . actually enhanced the value of the entire property? What you’re saying is what they enhanced each individual building or item; is that correct?
A Well, yes, but they in total affected the property also. I’m saying you were trying to get me to compare it with the value of the property before anything was done to ’em and I can’t do that without some special work. I can do it. . . . But I don’t have the figures here to do it.

Even though Hinshaw later stated that he thought that the values he testified to showed both the enhancement of the individual items that were improved and the value of those improvements to the property as a whole, we do not agree. From our review of Hinshaw’s testimony, we cannot find any testimony to support this measure of recovery. Thus, in awarding Freda $70,000 for the improvements as a result of Hinshaw’s testimony, we hold that the chancellor erred in determining the property amount to be allowed for the improvements, and we remand the case with directions to proceed in a manner not inconsistent with this opinion. See Smith v. Nelson, 240 Ark. 954, 403 S.W.2d 99 (1966).

In the second issue, the appellant argues that the chancellor erred in holding that she could only recover rents after the commencement of her partition suit. On this same issue, the appellees in their cross appeal argue that the chancellor erred in awarding any rents to the appellant. We find no error in the chancellor’s holding on this point.

One of the characteristics of tenancy in common is that each tenant has the right to occupy the premises, and neither tenant can lawfully exclude the other. Franklin v. Hempstead County Hunting Club, 216 Ark. 927, 228 S.W.2d 65 (1950); see generally Powell, Real Property, ¶ 603(1) (1982). The occupation of one tenant in common is deemed possession by all. For the possession of one tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought home to them directly or by such acts that notice may be presumed. Franklin, 216 Ark. 927, 228 S.W.2d 65. We have stated that the dispossession of a cotenant is a question of fact, and we will not reverse the chancellor’s determination absent a showing it was clearly erroneous. Beshear v. Ahrens, 289 Ark. 57, 709 S.W.2d 60 (1986).

Under the property laws of common tenancy, until the appellant asserted her right for common enjoyment of the farm, the other tenants in common were not obligated to stay out. A tenant in possession who does not exclude his cotenants is not liable for rent. Lawrence v. Lawrence, 231 Ark. 324, 329 S.W.2d 416 (1969).

From our review of the record, we cannot say that the chancellor’s finding that the appellant did not assert her right for common enjoyment until the filing of her partition suit is clearly erroneous. In so ruling, we note that the appellant lived on part of the farm and there is ample evidence, albeit conflicting, to reflect she had reasonable access to all the property. While we would agree that there seems to be bad blood between the appellant and her stepmother Freda, we cannot conclude that the appellees excluded the appellant prior to her commencement of the partition suit.

Finally, in the appellees’ second point in their cross appeal, they argue that the chancellor erred in awarding the appellant attorney’s fees. In Ark. Code Ann. § 18-60-419(a) (1987), it is stated that when a judgment is rendered for partition, the court shall allow a reasonable attorney fee. This provision makes the awarding of attorney’s fees in partition actions mandatory. See Johnson v. Smith, 248 Ark. 929, 454 S.W.2d 649 (1970). The adversary nature of a partition suit is not a bar to the allowance of attorney’s fees. Id. In assessing a reasonable fee to be awarded, the court is instructed to consider only those services performed by the attorney requesting the fee which are of common benefit to all parties. Ark. Code Ann. § 18-60-419(b). Here, the appellant brought a successful partition suit which resulted in the selling of the farm and the dividing of the proceeds along with an accounting for the proper rents and profits offset by the reimbursement allowed for improvements between the four cotenants. Thus, the chancellor properly awarded an attorney’s fee to the appellant’s attorney for services performed for the benefit of all cotenants.

For the reasons above, we affirm in part and reverse and remand in part. We affirm on cross appeal.

       In so holding, we note that the appellees in their cross appeal discuss the appellee, Freda’s homestead interest. Because this point was considered in the first appeal, we do not consider it here.


author: Dale Price, Justice.

text:
    MERCHANTS & PLANTERS BANK & TRUST CO. of Arkadelphia v. Thomas W. MASSEY, et al.
    90-22
    790 S.W.2d 889
    Supreme Court of Arkansas
    Opinion delivered June 4, 1990

      McMillan, Turner & McCorkle, by: Taylor A. King, for appellant.

      Honey & Honey, P. A., by: Marc Honey, for appellees.
   Dale Price, Justice.

This case involves the validity of a promissory note and deed of trust executed by Thomas Massey to the Merchants & Planters Bank & Trust Company (hereafter M & P). Questions are also presented concerning the doctrine of unjust enrichment and the equitable defense of unclean hands.

Merchants & Planters loaned $22,000 to Thomas Massey on February 14, 1986. The loan was made on the strength of a promissory note and a deed of trust pledging 1.25 acres of land as security for the loan. The land was the homestead property of Massey and his wife, Anita.

The promissory note and the deed of trust both purported to bear the signature of Anita Massey. In fact, her signature had been forged by her husband. Thomas Massey had been allowed by M & P to take the instruments home, and when he returned with them, they contained Anita Massey’s forged signature. The instruments were then notarized by an employee of M & P.

Thomas Massey used the $22,000 to pay off various notes and family debts. Anita Massey knew that her husband had obtained a loan from somewhere, and, in fact, they had discussed the possibility of borrowing money because of financial difficulties. However, Anita never agreed to put up any collateral to secure a loan and was unaware Thomas had signed her name to a promissory note and had pledged their property as security.

In January of 1987, Anita Massey discovered the promissory note on which her name had been forged, and she began divorce proceedings against her husband. On the advice of her attorney, a deed was prepared on February 5, 1987, whereby Thomas Massey conveyed the 1.25 acres to Sarah Beggs, Anita’s mother. Anita did not join in this deed.

The divorce became final on March 5, 1987. There was no property settlement agreement.

At that time, the promissory note was in default. On July 15, 1987, M & P filed a foreclosure complaint seeking judgment against Thomas and Anita Massey for the balance due on the note and asking for foreclosure on the 1.25 acres if the judgment was not satisfied. Anita Massey answered the complaint denying she had signed the instruments on which the complaint was based. This was when M & P first realized that Mrs. Massey’s signature had been forged.

Acting on this newly acquired knowledge, M & P filed an amended complaint seeking to foreclose on Thomas Massey’s one-half interest in the property, with the purchaser to be subject to Anita Massey’s one-half interest and homestead interest. In additional counts, M & P alleged: (1) that its note and deed of trust were valid under the validation of instruments statute; (2) that the deed from Thomas Massey to Sarah Beggs should be declared void; and (3) that Anita Massey was unjustly enriched when the proceeds of the note were used to pay off family debts.

A hearing was held and the chancellor dismissed M & P’s complaint on three grounds: (1) the deed of trust from Thomas Massey to M & P was invalid because it did not contain Mrs. Massey’s signature; (2) Mrs. Massey was not unjustly enriched; and (3) since M & P had notarized the forged signature, the defense of unclean hands barred recovery. This is the ruling from which M & P’s appeal is taken.

Merchants and Planters Bank pursued two avenues of recovery. First, it sought to recover the balance due on the note directly from Mrs. Massey on the theory of unjust enrichment. Second, it sought to foreclose solely on Thomas Massey’s interest in the 1.25 acres.

Considering the evidence in the light most favorable to the appellees, we try chancery cases de novo on the record and do not reverse a finding of fact by the chancellor unless it is clearly erroneous. McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988); ARCP 52(a).

Merchants and Planters argues that the proceeds of the $22,000 loan were used to pay bills owed by both Mr. and Mrs. Massey. Since Mrs. Massey received the benefits of the loan without incurring the obligation to pay it back, it is claimed she was unjustly enriched. The trial court correctly declined to hold for M & P on this theory.

An action based on unjust enrichment is maintainable in all cases where a person has received money under such circumstances that, in equity and good conscience, he ought not to retain it. Frigillana v. Frigillana, 266 Ark. 296, 584 S.W.2d 30 (1979). The chancellor apparently found that the circumstances here were not such that Mrs. Massey should repay the loan. Mrs. Massey was unaware that her name had been signed to the note. She accepted the benefits of what she thought was money her husband had obtained on a personal loan. As we said in Whitley v. Irwin, 250 Ark. 543, 465 S.W.2d 906 (1971):

One who is free from fault cannot be held to be unjustly enriched merely because he has chosen to exercise a legal or contractual right. One is not unjustly enriched by receipt of that to which he is legally entitled. (Cites omitted.)

It is also true that Mrs. Massey took no action that would indicate she intended to be bound by the note. See Dews v. Halliburton Industries, Inc., 288 Ark. 532, 708 S.W.2d 67 (1986). The recent court of appeals case, Duckworth v. Poland, 30 Ark. App. 281, 785 S.W.2d 472 (1990), is also instructive.

We hold that the chancellor’s finding that Mrs. Massey was not unjustly enriched is correct.

Mrs. Massey also argued below that the defense of unclean hands would bar M & P’s recovery of money from her. Specifically, she pointed to M & P’s wrongful notarization of the note and the deed of trust, both of which bore her forged signature.

The clean hands maxim bars relief to those guilty of improper conduct in the matter as to which they seek relief. Marshall v. Marshall, 227 Ark. 582, 300 S.W.2d 933 (1957). Equity will not intervene on behalf of a plaintiff whose conduct in connection with the same matter has been unconscientious or unjust. Batesville Truck Lines, Inc. v. Martin, 219 Ark. 603, 243 S.W.2d 729 (1951).

The chancellor correctly found that M & P’s action against Mrs. Massey should have been barred by the clean hands doctrine. In effect, M & P is seeking to take advantage of its own wrongful conduct in notarizing and accepting Mrs. Massey’s forged signature on the note. That conduct was, in the language of Marshall and Batesville Truck Lines, “improper” and “unconscientious.” It is also noteworthy that such conduct, if undertaken today, would be illegal. At the time the instruments were notarized, it was not illegal for a notary to witness an unfamiliar signature. However, in 1989, such conduct was made unlawful by the general assembly. See Ark. Code Ann. § 21-14-111 (Supp. 1989).

For the reasons stated, the chancellor was correct in finding that M & P could not recover against Mrs. Massey for the balance due on the note.

The next question is whether M & P may foreclose on Thomas Massey’s one-half interest in the 1.25 acres. The deed of trust, in which the 1.25 acres was pledged as collateral, is clearly void because it was not joined in by Mrs. Massey. The statute which voids the transaction is Ark. Code Ann. § 18-12-403 (1987) which reads as follows:

No conveyance, mortgage, or other instrument affecting the homestead of any married person shall be of any validity, except for taxes, laborers’ and mechanics’ liens, and the purchase money, unless his or her spouse joins in the execution of the instrument and acknowledges it.

Merchants and Planters recognizes that this statute prevents it from foreclosing on Mrs. Massey’s interest in the land. However, it is claimed that Ark. Code Ann. § 16-47-108 (1987) entitled “Validation of instruments affecting title to property” validates the defective deed to the extent that foreclosure could be had against Mr. Massey’s interest in the land. Ark. Code Ann. § 16-47-108(a)(l) and (b) (1987) provide:

All deeds, conveyances, deeds of trust, mortgages, marriage contracts, and other instruments in writing, affecting or purporting to affect the title to any real estate or personal property situated in this state, which have been recorded and which are defective or ineffectual:
(1) because of failure to comply with § 18-12-403,
(b) shall be as binding and effectual as though the certificate of acknowledgement or proof of execution was in due form, bore the proper seal, and was certified by a duly certified officer.

This statute is the codification of an act passed in 195 5. See Act 101 of 1955. It is generally recognized that curative acts, such as this one, have retrospective operation and apply to past events and transactions. See 2 Singer, Sutherland Statutory Construction, §§ 41.11 to 41.12 at 410-14 (4th ed. 1986); 73 Am. Jur. 2d Statutes, § 353 at 489 (2d ed. 1974); 16A C.J.S. Constitutional Law, § 400 at 335 (1984). A curative act does not apply to a transaction which takes place after the passage of the act. In Petition of Miller, 149 Pa. Super. 142, 28 A.2d 257 (1942), it was recognized that:

The purpose of a validating statute is to cure past errors, omissions, and neglects, and thus to make valid what, before its enactment, was invalid. It grants no ‘indulgence’ for the correction of future errors and neglects.

The transaction in this case — the execution of the deed of trust from Thomas Massey to M & P — took place after 19 5 5. Therefore, the act cannot operate to cure any defect in the deed. The deed is void under the provisions of Ark. Code Ann. § 18-12-403 (1987).

We recognize that the chancellor did not use this line of reasoning in dismissing M & P’s foreclosure complaint, but we will affirm if the chancellor reaches the correct result. Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984).

Affirmed.

Turner, J., not participating.


author: Jack Holt, Jr., Justice. Steele Hays, Justice, Jack Holt, Jr., Dale Price, Justice,

text:
    IN THE MATTER OF THE ADOPTION OF Cotey Allen PARSONS, A Minor
    90-11
    791 S.W.2d 681
    Supreme Court of Arkansas
    Opinion delivered June 11, 1990
    [Supplemental Opinion on Denial of Rehearing July 16, 1990.]

      Lynn Pence, Central Arkansas Legal Services, for appellant.

      Hartenstein, Taylor & Montgomery, by: Ray Hartenstein, for appellee.

      Dudley and Price, JJ., concur in part and dissent in part.

   Jack Holt, Jr., Justice.

This is an adoption case, in which the Probate Judge of the Pulaski County Probate Court, Fifth Division, denied both a motion to set aside the interlocutory order of adoption and a petition for writ of habeas corpus filed by the appellant, Deborha Parsons, natural mother of the child subject to adoption.

On appeal, Parsons alleges 1) that the trial court erred in entering the decree of adoption prior to the expiration of the ten day period of revocation contained in the consent that she signed and the decree of adoption itself, and in violation of the adoption laws of Arkansas, thereby constituting a violation of her due process rights under Arkansas law and the fourteenth amendment of the Constitution of the United States, and 2) that the trial court erred by failing to grant her motion to set aside the interlocutory order of adoption and her petition for writ of habeas corpus and by finding that there are two separate ways to consent to adoption.

We agree that the trial court erred in entering its decree of adoption prior to the expiration of the ten day period of revocation and reverse and remand.

The facts underlying this case are that Parsons, nineteen years old and unmarried, gave birth to a male child in Little Rock, Arkansas, on October 10,1989. Medical expenses, in the amount of $ 1445.00, and living expenses, in the amount of $2603.08, were paid by the prospective adoptive parents on behalf of, and to, Parsons.

On October 12, Parsons signed a lengthy document entitled Affidavit and Consent of Natural Mother that contained separate sections on surrender of the child and consent to adoption. The next day, a hearing was held in the probate court, and a decree of adoption was filed, which contained a provision that the decree was subject to Parsons’ right of withdrawal on or before October 22, 1989. On October 17, Parsons attempted to withdraw her consent by sending copies of her revocation to the attorney for the prospective adoptive parents, as well as to the probate court. This appeal follows the refusal of the chancellor to grant Parsons’ requested relief.

As adoptions were unknown to the common law, they are governed entirely by statute. Irvan v. Kizer, 286 Ark. 105, 689 S.W.2d 548 (1985). The Revised Uniform Adoption Act, Ark. Code Ann. §§ 9-9-201 to -224 (1987 and Supp. 1989), distinguishes between two methods by which a child may be adopted: 1) the relinquishment of the right to consent to adoption to a third party, embodied in section 9-9-220, and 2) direct consent to adoption by an individual, embodied in section 9-9-208. These two provisions are mutually exclusive, in that they address separate methods by which a child may be adopted and provide different means by which the relinquishment of consent or direct consent may be withdrawn.

Section 9-9-220 addresses the relinquishment and termination of the parent and child relationship and provides in pertinent part as follows:

(b) All rights of a parent with reference to a child, including the right to receive notice of a hearing on a petition for adoption, may be relinquished and the relationship of parent and child terminated by a writing, signed by an adult parent. . . .
(1) The relinquishment may be withdrawn within ten (10) days after it is signed or the child is born, whichever is later. The relinquishment is invalid unless it states that the parent has this right of withdrawal; . . .

The Affidavit and Consent of Natural Mother that Parsons read and signed on October 12,1989, contained a section labeled Surrender of the Child, which correlated with section 9-9-220 and provided in pertinent part as follows:

5. That I can have reasonable time to think over my consent prior to an interlocutory (temporary) hearing which will be held in the Pulaski County Probate Court on October 13 [handwritten], 1989, or at such time thereafter as the court shall determine, in which the adopting parents, petitioners herein, will be awarded custody of the infant to be adopted.
6. That I may automatically withdraw my consent within ten (10) days of the signing of this consent by notifying the attorney for the adopting parents or the Probate Court of the county in which the adoption is pending.
7. That after my right of withdrawal of consent expires and the court enters any order effecting the custody of the infant, I may only withdraw my consent for good cause. I understand that good cause means fraud, duress or intimidation in obtaining of my consent.

The same Affidavit and Consent of Natural Mother contained a section labeled Consent, which correlated with section 9-9-208 (1987) and stated in pertinent part as follows:

I have full knowledge and understanding as to the nature of these proceedings and fully realize that I will lose all legal rights in and to the infant as soon as this paper and accompanying pleadings are signed and filed with the court in which the adoption is pending. Notice of revocation of my consent shall be given effect only if the adoptive parents fail to oppose such revocation or, if they oppose such revocation and the court determines that the best interests of the child will be promoted by giving force and effect to such revocation.
In effect, I have advised and I am fully aware that once I surrender physical custody of the child and sign the various papers necessary to commence the adoption proceedings, that there is a possibility that I may never be able to regain custody of the child even if I change my mind and seek custody of the child later.

Section 9-9-209 (1987) addresses the withdrawal of consent to adoption and provides:

(a) A consent to adoption cannot be withdrawn after the entry of a decree of adoption.
(b) A consent to adoption may be withdrawn prior to the entry of a decree of adoption if the court finds, after notice and opportunity to be heard is afforded to petitioner, the person seeking the withdrawal, and the agency placing a child for adoption, that the withdrawal is in the best interest of the individual to be adopted and the court orders the withdrawal.

In construing the provisions in the Affidavit and Consent of Natural Mother and the effect of Parsons’s attempted revocation, we note that although this case involves an attempt to perfect a direct adoption covered by section 9-9-208, the attorney for the prospective adoptive parents also included in her consent forms the provision relating to the relinquishment of parental rights to third parties, covered by section 9-9-220. This blending of different statutory consent requirements appears to be in compliance with a “local rule” imposed by the probate judge. We do not sanction local rules as such. In re: Changes to the Arkansas Rules of Civil Procedure and the Arkansas Rules of Appellate Procedure, Abolishment of the Uniform Rules of Circuit and Chancery Courts, and Publication of Administrative Orders, 294 Ark. 664, 742 S.W.2d 551 (1987). Be this as it may, the probate judge’s requirement of a local rule was not only inappropriate, but her underlying interpretation of Bruce v. Dillahunty, 293 Ark. 479, 739 S.W.2d 522 (1987), was wrong.

We thought that we had made the matter of consent clear in Bruce v. Dillahunty, supra, but perhaps not. In any event, we reiterate that sections 9-9-208 and -209 are mutually exclusive from section 9-9-220 in obtaining the relinquishment of consent or consent to an adoption. Either one or the other should be employed based on the applicable circumstances of the adoption; the use of both provisions in this instance was in contravention of the statutes and should not be repeated.

Parental rights and the integrity of the family unit have always been a concern of this state and their protection regarded as a proper function of the courts. The conditions upon which parental rights are to be terminated are a question of policy, the resolution of which is addressed in a democracy to the policy making branch of government, the General Assembly, and it is not for the courts to make a statute say something that it clearly does not. Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979). Additionally, it is settled law that statutory provisions involving the adoption of minors are strictly construed and applied. Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ark. App. 1980).

We reaffirmed our position of giving careful protection to a natural parent’s rights in In the Matter of the Adoption of Glover, 288 Ark. 59, 702 S.W.2d 12 (1986) (citing Woodson v. Lee, 221 Ark. 517, 254 S.W.2d 326 (1953) (quoting In re Cordy, 169 Cal. 157, 146 P. 532 (1914))):

. . . the power of the court in adoption proceedings to deprive a parent of her child, being in derogation of her natural right to it, and being a special power conferred by the statute, such statute should be strictly construed; that ‘the law is solicitous toward maintaining the integrity of the natural relation of parent and child; and in adversary proceedings in adoption, where the absolute severance of that relation is sought, without the consent and against the protest of the parent, the inclination of the courts, as the law contemplates it should be, is in favor of maintaining the natural relation. . . . Every intendment should have been favor of the claim of the mother under the evidence, and if the statute was open to construction and interpretation it should be construed in support of the right of the natural parent.’

In this case, the combining of the two statutory methods by which one may give up one’s child for adoption in a single affidavit resulted in prejudice to Parsons, the natural mother. Based on the wording of the affidavit, Parsons had a right to rely on the representation that she had a ten day period to automatically withdraw her consent to her child’s adoption. Parsons’ right is complemented by the trial court’s inclusion of this ten day right to withdraw consent provision in its decree of adoption, to wit:

IT IS THEREFORE, BY THE COURT CONSIDERED, ORDERED AND DECREED that Baby Boy Parsons be and he is hereby adopted by the petitioners, _and_husband and wife; that the name of the child is hereby changed to_that from this date forward (subject to the natural mother’s right of withdrawal on or beforc 10/22/89) [handwritten]) to all legal intents and purposes said child shall be the child of the petitioners; the provisions of the Decree will be final as provided by law, unless sooner vacated by the Court for good cause shown, and a substituted birth certificate shall be issued showing the adopting parents as the parents of the child and showing the name of the child to be

Consequently, in giving careful protection to the natural mother’s rights, we must construe the terms of the affidavit and the court decree in favor of Parsons and find that, under these circumstances where both relinquishment of parental rights and consent provisions were contained in the same document purporting to sanction the adoption of a minor child and the trial court included the ten day right to withdraw provision in its decree of adoption, the document was, in the main, a relinquishment of parental rights as embodied in section 9-9-220. As a result, Parsons’ revocation of her relinquishment five days after she signed the affidavit was effective.

Accordingly, Parsons’ claim on the child as the child’s natural parent remains intact.

We reverse and remand the case for the entry of an order consistent with this opinion.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I agree with the majority’s interpretation of Ark. Code Ann. § 9-9-208 (1987), consent for adoption, and Ark. Code Ann. § 9-9-220 (1987), relinquishment and termination of parent/child relationship. These two statutes provide mutually exclusive methods for executing adoptions. However, I respectfully disagree with the majority’s application of these statutes to the facts before us.

The majority avoids deciding whether § 9-9-208 requires a ten day revocation period as set out in § 9-9-220. Instead, it reasons that because the form (“Affidavit and Consent of the Natural Mother”) signed by the appellant on October 12,1989, contained language combining the two statutory methods for placing a child for adoption, the “affidavit resulted in prejudice to Parsons, the natural mother.” The majority disregards entirely the welfare of the child or the interests of the adopting parents, in whose custody and care the child has reposed since October 13, 1989, all of which occurred at the behest of the appellant, who incidentally received some $2,603.08 during her pregnancy plus the payment of all medical and hospital bills. Furthermore, the appellant herself instigated the placement of her child for adoption by responding to a newspaper ad placed by adoptive parents, and later by personally talking with the appellees.

The Affidavit and Consent form signed by the appellant included a section entitled “Surrender of the Child” which corresponds to § 9-9-220. Under this paragraph the appellant read language stating that she may automatically withdraw her consent within ten days of signing this consent. Additionally, this document contained a paragraph entitled “Consent,” corresponding to § 9-9-208. Under this paragraph the appellant read that “notice of revocation of my consent shall be given effect only if the adoptive parents fail to oppose such revocation, or if they oppose such revocation and the court determines that the best interest of the child will be promoted by giving force and effect to such revocation.” [Emphasis in original.] Although the document signed contained language relating to § 9-9-208, consent to adoption, and language pertinent to § 9-9-220, relinquishment of parent/child relationship, by concluding that prejudice resulted to the natural mother, the majority implicitly decides that the relinquishment language of § 9-9-220 dominates, granting the appellant a ten day revocation period,, or alternatively, judicially legislating a ten day revocation period into § 9-9-208.

Admittedly, the ambiguous language in this document is unfortunate and the ten day withdrawal provision included in the chancellor’s decree of adoption complicates the issue. But the solution, as I see it, is not to interpret this document as a “relinquishment of the parent/child relationship” or as a “consent to adoption.” The proper course in attempting to deal with this situation should be for us to remand the case for a determination of the best interests of the child. The majority opinion simply directs the trial court to return the child to its natural mother irrespective of other compelling considerations. Adoptions were unknown to the common law and are entirely statutory. Any attempt to grant rights to the natural relatives, in the absence of statutory authority, is against public policy and is void. Irvan v. Kizer, 286 Ark. 105, 689 S.W.2d 548 (1985).

Lynn Pence, Central Arkansas Legal Services, for appellant.

Hartenstein, Taylor & Montgomery, by: Ray Hartenstein, for appellee.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING JULY 16, 1990

Jack Holt, Jr.,

Chief Justice. The petition for rehearing is denied. In doing so, we note that the wording in Ark. Code Ann. §§ 9-9-214(c) and -214(d) (1987) is plain and unequivocal and provides, in pertinent part, as follows:

(c) If. . . the court determines that the required consents have been obtained or excused and that the adoption is in the best interest of the individual to be adopted, it may (1) issue a final decree of adoption ....
(d) If the requirements for a decree under subsection (c) have not been met, the court shall dismiss the petition and determine the person to have custody of the minor, including the petitioners if in the best interest of the minor. . . . (Emphasis added.)

As we pointed out in our majority opinion, adoptions were unknown to the common law, and they are governed entirely by statute. In this instance, the law provides that the court shall dismiss the petition and determine the person to have custody of the minor, including the petitioners if in the best interest of the minor.

Dale Price, Justice,

concurring in part, dissenting in part. I concur with the majority that rehearing should be denied. I dissent for two reasons. First, this court in its original opinion decided the custody issue by holding that the consent to adoption was withdrawn, the decree of adoption void, and the natural mother’s claim on the child remained intact. As far as I’m concerned, that settled the custody issue.

Second, the probate court to which this case is being remanded lacks jurisdiction to hear custody cases. This was an adoption case, heard by the probate judge and appealed. We reversed and remanded to the probate court. The majority, in its supplemental opinion, suggests that under Ark. Code Ann. § 9-9-214(d) (1987) the probate judge should determine the person who is to have custody of the minor. This holding overlooks the fact that probate courts are without power or authority to determine custody matters. Edwards v. Martin, 231 Ark. 528, 331 S.W.2d 97 (1960).

I respectfully dissent.

Dudley, J., joins.

       Appellees state in their brief that the “ten day notice provision” must be included in “any” consent to adoption filed in the probate judge’s division.


text:
    Jeffrey Steele FORGY v. STATE of Arkansas
    CR 90-26
    790 S.W.2d 173
    Supreme Court of Arkansas
    Opinion delivered June 11, 1990

      William R. Simpson, Jr., Public Defender, by: Ted Thomas, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Paul L. Cherry, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

At 4:00 on the afternoon of July 7, 1989, Jason Bowman and his friend, Joel Fox, both eighteen years old, drove in Fox’s truck to the Bowman home in the Heights section of Little Rock. As they arrived, they saw a pickup truck in the driveway. It was white with “Toyota” written in orange letters on the tailgate and had a black liner in the bed. It did not have a visible license plate. Jason’s dog was barking outside the home. Jason got out of Fox’s truck and walked toward the house. At the same time, a stranger came toward Jason from around the side of the garage near a patio area. Jason asked the stranger if he could help him. The man responded that he had received a call that someone was in the house, and he had to come check on it. The stranger continued to walk past Jason while Jason walked to the house. At the same time, Joel, who was near his own truck, observed the man. As Jason approached the garage to open a door that leads from the garage into the house, he noticed the door was splintered and had been forced open. He immediately turned and saw the stranger driving away in the white pickup truck. He tried to get a license plate number, but realized no plate was displayed. He next discovered the doors leading into the house were open. He subsequently found the patio door was also open. The patio door leads to the area from which the stranger came. Jason phoned his father who, in turn, called the police. When Jason’s mother, Sharon Bowman, arrived, she noticed that doors to cabinets in the bedroom were open, and she observed black scrape marks on a white shelf inside the cabinet. A portable television set still sat on the shelf.

A detective was unable to lift any clear fingerprints. A few days later, on July 11, Jason and Joel identified appellant from a photo spread. On July 16, the police caught appellant. At the time, he was driving a white Toyota pickup truck but this time it had a license plate displayed. Jason and Joel identified the truck and, at trial, identified the appellant as the man whom they had seen at the Bowman residence.

The prosecutor filed an information charging appellant with one count of burglary and one count of theft of property. Other charges, not material to this opinion were also filed. At trial the count of theft of property was amended to attempted theft of property.

After the State had presented its evidence, the court granted a directed verdict on the attempted theft of property charge. On appeal, the appellant argues that the trial court erred in refusing to also grant a directed verdict on the burglary charge. The crime of burglary involves two elements: (1) that the defendant entered or remained unlawfully in an occupiable structure of another person and (2) that he did so with the purpose of committing therein an offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(a) (1987). The jury must find that the defendant had the purpose to commit a particular offense. Oliver v. State, 286 Ark. 198, 200, 691 S.W.2d 842, 843 (1985). Criminal intent cannot be presumed from the mere showing of illegal entry. Norton v. State, 271 Ark. 451, 453-54, 609 S.W.2d 1, 3 (1980).

When viewed in the light most favorable to the appellee, as we must do, the evidence shows that appellant left the Bowman residence when Jason and Joel arrived. In leaving he came from an area where a patio door had been opened. Another nearby door had been forced open. Just like the patio door, it was closed when the family left home that morning. The appellant gave Jason and Joel an implausible explanation for his presence. All together, this constitutes sufficient evidence to support a finding that appellant had unlawfully entered the Bowman residence.

The only other issue is whether there was sufficient proof to show that appellant unlawfully entered the residence for the purpose of committing an offense punishable by imprisonment. Proof of purpose to commit an offense may be inferred from circumstantial evidence. Here, appellant drove to the Bowman residence, and, for the reasons set out above, circumstantial evidence shows he broke in. In addition, cabinet doors in the bedroom were opened. There were scrape marks on the cabinet shelf next to the television set. The scrape marks were new, as Sharon Bowman first noticed them after appellant was at her residence. Appellant left the home at the moment Jason and Joel arrived. He left in his truck which had no visible license plate. This constitutes circumstantial evidence from which the jury could conclude that appellant entered the home with the intent of committing a theft, and in fact, had found the portable television set in the cabinet and started to remove it, when the attempted theft was thwarted by Jason and Joel’s arrival.

The appellant points out that the trial court granted a directed verdict on the attempted theft of property and, from that, argues he cannot be guilty of entering the house to commit a theft. The argument misses the mark. The State offered substantial circumstantial evidence from which the jury could find that appellant entered the home “with the purpose of’ committing a theft. The fact that he did not accomplish that purpose does not matter.

The appellant next argues that the information was defective because it did not specify the offense underlying the burglary. Here, the appellant brought eleven (11) pro se motions to court. None of them were actually filed, and we have no way of knowing their full content. One of them is mentioned in the record as being a “motion to quash the information for reasons of duplicity, violation of prohibition against double jeopardy, and inadequate notice of charges.” That part of the motion going to “inadequate notice of charges” possibly could be on the same subject as this point of appeal, but we have no way of knowing because it was not argued. Further, the trial judge did not rule on a motion concerning a defect in the information because of a failure to specify the underlying charge. We will not consider a matter in the absence of a record showing that the issue was raised below and the trial judge ruled on it. Roper v. State, 296 Ark. 292, 756 S.W.2d 124 (1988).

Affirmed.


author: Steele Hays, Justice.

text:
    F. L. STOTTS and Shirley Stotts v. Jimmy JOHNSON and the Malvern National Bank
    90-105
    791 S.W.2d 351
    Supreme Court of Arkansas
    Opinion delivered June 11, 1990

      David B. Switzer, for appellants.

      Phillis J. Lemons, for appellee Jimmy Johnson.

      Glover, Glover & Roberts, for appellee Malvern National Bank.
   Steele Hays, Justice.

This case involves a priority dispute under the Uniform Commercial Code between two creditors, F.L. and Shirley Stotts, appellants, and Malvern National Bank, appellee. The Stotts and the Bank claimed an interest in property being purchased by the debtor, Jimmy Johnson. The trial court found in favor of the Bank and the Stotts appeal from that decision.

On August 4, 1986, Jimmy Johnson made an agreement with F.L. Stotts to purchase a concession trailer from Stotts. Stotts gave Johnson a bill of sale which described the homemade concession trailer and included a statement that the trailer was free from all liens and encumbrances. Johnson took the bill of sale on the same day to the Malvern National Bank where he obtained a loan of $14,347.60. The Bank took a security interest in the trailer and filed its financing statement, perfecting its interest.

A month later Johnson gave Stotts a $10,000 down payment and signed a contract of sale, a promissory note, financing statement and security agreement. The financing statement was never perfected. By the terms of the contract, Johnson was to pay the down payment and $500 per month to Stotts.

In January of 1988, Johnson defaulted and Stotts repossessed the trailer pursuant to a provision in the contract of sale. Stotts then sold the trailer without giving notice to either Johnson or the Bank.

When Johnson learned of the sale he filed a replevin suit naming Stotts and the Bank as defendants and claiming Stotts had wrongfully repossessed the trailer. The Bank filed a counter claim against Johnson and a cross-claim against the Stotts alleging its lien was superior to that of Stotts. The case was heard by the trial court and it found for the Bank, holding that the Bank’s interest was paramount. The Bank was awarded judgment for the past due principal and interest, $8,920.07, against Stotts and Johnson. Other cross-claims and counterclaims by Stotts and Johnson were dismissed because of insufficient evidence.

The only issue on appeal is the Stotts’s contention that the trial court erred in awarding judgment in favor of the Bank. We affirm the trial court.

Appellants’ argument rests on two provisions of the Arkansas Uniform Commercial Code. The first, Ark. Code Ann. § 4-9-504 (1987), provides for the disposition of collateral by a secured party after a debtor’s default. The pertinent provision provides for notification of a sale of the collateral:

§ 4-9-504(3).
. . .“[Reasonable notification of the time and place of any . . . sale. . . shall be sent by the secured party to the debtor. ... In other cases, notification shall be sent to any other secured party from whom the secured party has received . . . written notice of a claim of an interest in the collateral.

The second provision relied on is Ark. Code Ann. § 4-9-507 (1987), which deals with a secured party’s liability for failure to comply with Section Five of Article 9. It provides in part:

§ 4-9-507(1).
If it is established that the secured party is not proceeding in accordance with the provisions of this Part disposition may be ordered or restrained on appropriate terms and conditions. If the disposition has occurred the debtor or any person entitled to notification or whose security interest has been made known to the secured party prior to the disposition has a right to recover from the secured party any loss caused by a failure to comply with the provisions of this Part.

Appellants argue that under these two provisions of the Code there is no requirement that notice be sent to someone in the Bank’s position, i.e., the Bank was not the debtor, nor had it notified appellants of its interest, § 4-9-504(3). Nor was the Bank within one of the classifications of § 4-9-507(1) of parties entitled to recover because of failure to comply with the provisions of part Five of Article 9. Therefore, appellants argue, the Bank was not entitled to any proceeds out of the disposition of the collateral upon default.

While there is authority supporting appellants’ position that they were not required to send notice to a senior creditor under § 4-9-504(3), see e.g., B. Clark, The Law of Secured Transactions, § 4.8 [7] [d] (1980), that does not answer the question before us. Nor do we find it dispositive whether the Bank was within one of the classifications entitled to recover under § 4-9-507(1) from a loss caused by a secured party’s failure to comply with the provisions of Part Five of Article 9, as also argued by appellants.

While the provisions in Part Five of Article 9 arguably do not include a senior creditor in the Bank’s position, they are not dispositive in any case, because they are not relevant to a senior creditor’s claim of priority in the collateral or its proceeds. Rather, we interpret the provisions in Part Five as directed to those individuals who would have an interest in seeing that the collateral is disposed of in the most productive manner possible, so that a surplus might be realized, which is all a debtor and junior creditor would be entitled to. See §§ 4-9-504(l)(c), and 4-9-504(2); 9 W. Hawkland, Uniform Commercial Code Series, § 9-504:09 (1986); Ark. Code Ann. § 4-9-504 Comment 6 (1982); see also, R. Hillman, J. McDonnell, S. Nickles, Common Law and Equity Under the Uniform Commercial Code § 25.02[4] [a] (1985).

In contrast, a senior creditor is interested, not in any surplus from a junior creditor’s sale, after deduction of the junior’s interest, but in realizing its priority entitlement as predetermined by the Code. Support for the Bank’s position is found in §§ 4-9-301 and 4-9-312, which provide that a perfected interest, as held by the Bank, takes priority over an unperfected security interest, held by Stotts. See § 4-9-301, Comment 2. Were it otherwise, what would be the point of granting priority to the party who has followed the structure outlined in the Code to determine priority disputes? See B. Clark, § 3.9[d], The World’s Worst UCC Decision (where the author criticizes a Florida case in which the court ignored the clear priority provisions of the Code, and fashioned an award to a junior creditor based on certain equity maxims).

While it has been acknowledged that Article 9 would grant priority to a senior creditor over a junior creditor, it is further acknowledged that, “[N]othing in Article 9 clearly and explicitly gives a senior secured party a prior right to the proceeds of a foreclosure sale conducted by a junior secured party. . . .” R. Hillman, supra, at note 265. However, that same commentator further notes that the priority interests are clearly recognized by the Code, id at note 265, 293, and that while this issue of a senior creditor’s priority to the proceeds has not been squarely addressed in most cases, a number of courts have nevertheless held that a junior secured party who disposes of collateral is accountable to a senior secured party for the sale proceeds. Id. at note 280, and id, 1989 Cum. Supp., note 280, (and cases cited therein);see also B. Clark,supra, § 4.6[4], 1987 Cum. Supp. No. 3 (and cases cited therein). These courts have found support for their decisions through various theories including a conversion action by the senior creditor, based on priority sections of the code, see e.g., Erland Imp. v. First St. Bank of Brownsdale, 400 N.W.2d 421 (1987) (§ 9-312); Consolidated Equip. Sales, Inc. v. First State Bank & Trust Company of Guthrie, 627 P.2d 432 (Okla. 1981) (§ 9-306, and see R. Hillman, supra at § 25.02 [4] [b], or simply on the basis of the senior creditor’s request for accounting pursuant to the priorities of the Code, see State Savings Bank of Hornick v. Onawa State Bank of Onawa, 368 N.W.2d 161 (Iowa 1985); N.H. Business Dev. v. F.R. Lepage Bakery, 832 F.2d 7 (1st Cir. 1987) (the court based its decision on priority interests and a constructive trust theory in response to the plaintiffs request for an accounting.)

Our research has produced little discussion of this question, but the one extensive commentary we have found gives support for granting priority in this situation to the senior creditor, based on the priority provisions of the Code, R. Hillman, supra, at note 293, with support from various policy reasons within the code’s framework. Id. at § 28.02[4][d]. We find that persuasive. That discussion concludes with the following:

These concerns may suggest that an unexpressed principle or policy underlies Article 9 which supports giving a senior secured party a prior right to the proceeds of a junior creditor’s disposition of collateral. If so, the courts are licensed to go beyond the statute’s literal dictates and construe its provisions liberally, (fn omitted). Specifically, the courts may implement ‘a statutory policy with liberal and useful remedies not provided in the statutory test.’ (fn omitted). Thus the plain meaning and logical implications of Sections such as 9-306 and 9-504 may be preempted by a pervasive spirit of priority that supports giving a senior secured party a claim to the proceeds of a junior creditor’s sale of collateral.

To the same effect see N.H. Business Dev. v. F.R. Lepage Bakery, supra. We agree with that analysis and hold that the trial court properly found that the Bank had priority over the Stotts.

As an alternate point, appellants argue that they could not be liable to the Bank because at the time of the disposition of the collateral the debtor was not yet in default to the Bank. This issue was not raised to the trial court, consequently the point has not been preserved for review. Barr v. Arkansas Blue Shield, Inc., 297 Ark. 262, 761 S.W.2d 174 (1988).

Appellants also argue that the cross-complaint filed by the Bank should be dismissed because the appellants were not served with the complaint within the time limit prescribed by ARCP Rule 4(i). However, this issue, while mentioned by appellants in their answer, was not otherwise brought to the attention of the trial court. Having failed to obtain a ruling by the trial court, the appellants may not raise the point on appeal. Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987).

The judgment is affirmed.

       This may not be the appropriate measure of damages, see R. Hillman, J. McDonnell, S.Nickles, Common Law and Equity Under the Uniform Commercial Code, (1985), § 25.01 [3][a] and § 25.02[5) [a], n.312, however this issue was not raised below nor has it been argued on appeal.


text:
    Lee Allen PYLAND v. STATE of Arkansas
    CR 90-81
    790 S.W.2d 178
    Supreme Court of Arkansas
    Opinion delivered June 11, 1990

      Bradley, Coleman & Davidson, by: Scott Davidson, for appellant.

      Steve Clark, Att’y Gen., C. Kent Jolliff, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This is an appeal of a sentence imposed in a revocation hearing. The issue is whether the court erred in refusing to grant a continuance at the request of Lee Allen Pyland, the appellant, for the purpose of obtaining an evaluation of his mental condition. We hold that Pyland has not demonstrated that he had a right to a continuance for that purpose, and thus we affirm.

Pyland was convicted of manslaughter in 1985. He was sentenced to ten years imprisonment with seven years suspended. A condition of the suspended sentence was that Pyland was not to possess or use alcoholic beverages. The state sought to revoke the suspended sentence because Pyland pleaded guilty to driving while intoxicated on September 19, 1989.

At the hearing on revocation held November 20, 1989, Pyland’s counsel moved for a continuance so that Pyland could undergo a psychiatric examination and finish a rehabilitation program in which he was engaged. Counsel stated that Pyland was taking medication, was having hallucinations, and was under psychiatric care, and thus he feared Pyland would be unable to assist in his defense. The court allowed a short continuance but stated clearly that he would hold the revocation hearing that day. Contrary to the state’s contention, it is clear to us that the court ruled on the motion.

In a criminal trial, if a defendant has made a preliminary showing that his sanity at the time of the commission of the offense is likely to be a significant issue he is entitled to the assistance of a psychiatrist. Ake v. Oklahoma, 470 U.S. 68 (1985); Dunn v. State, 291 Ark. 131, 722 S.W.2d 595 (1987).

Our statute providing for psychiatric examination of a defendant, Ark. Code Ann. § 5-2-305 (Supp. 1989), is inapplicable here as it applies “[w]henever a defendant [is] charged in circuit court.” This was not a hearing of a charge but had only to do with a sentence revocation. In Morrissey v. Brewer, 408 U.S. 471 (1972), the Supreme Court held that one facing parole revocation is entitled to a hearing as well as other due process rights. The question whether an indigent person in that situation was entitled to appointment of counsel was left open. That question was answered in Gagnon v. Scarpelli, 411 U.S. 778 (1973), where it was stated that “probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty [411 U.S. at 782].” The court held that the due process to which the probationer was entitled would require appointment of counsel in some cases but not others, depending on the complexity of the issue or issues to be addressed in the revocation hearing. The fact that such a hearing is not the same as a criminal proceeding was again recognized in Minnesota v. Murphy, 465 U.S. 420, 435, n.7, (1984).

Our understanding of these Supreme Court decisions leads us to the conclusion that, like the decision of entitlement to counsel, the decision whether to provide psychiatric assistance to one facing a revocation hearing must be on a case by case basis. While due process must be accorded the respondent, there is no entitlement to the full range of criminal trial safeguards because the court is not dealing with a person who had yet to be convicted of anything. People v. Atencio, 186 Colo. 76, 525 P.2d 461 (1974). The full requirement of Ake v. Oklahoma, supra, to the extent it might require providing independent psychiatric help to determine competency at the time of “trial” as well as competency at the time the offense was committed, does not apply to a proceeding that is not a part of a criminal trial.

We cannot say the judge was wrong. While it is clear that Pyland has a serious problem with alcohol consumption, it is also clear that he was fully cognizant of what had happened when he was arrested for driving while intoxicated. His testimony at the hearing was lucid, and nothing which occurred at the hearing contributed to his counsel’s assertion that Pyland was unable to cooperate in his own defense. The opposite appeared to have been the case.

Affirmed.


author: David Newbern, Justice. Steele Hays, Justice,

text:
    STATE of Arkansas v. David MASSERY
    CR 89-91
    790 S.W.2d 175
    Supreme Court of Arkansas
    Opinion delivered June 11, 1990

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellant.
    No brief filed.
   David Newbern, Justice.

The state has appealed the acquittal of the appellee, David Massery, who was tried for driving while intoxicated. It is contended that the appeal is authorized by Ark. R. Crim. P. 36.10(b) and (c) because an error has been committed in the trial court which will prejudice the state and review is, as provided in subsection (c) of the rule, required for “the correct and uniform administration of the criminal law.” We find no such issue here and thus dismiss the appeal.

Massery was observed by patroling officers driving erratically in the parking lot of a grocery store. He failed a field sobriety test and was taken into the station for a blood-alcohol test. A breathalyzer test was administered, and Massery was arrested on the basis of a blood alcohol reading of .116.

The state presented Officer Keyes as its first witness. He testified about certification of the breathalyzer machine used in this case and his personal certification as an operator. He testified about the procedure used to calibrate the machine. Massery’s counsel questioned Keyes about the simulator device used in the calibration process. In the course of extended examination and cross-examination, Keyes said the simulator was one manufactured by the Stephenson company and was on the list of simulators approved by the state health department. When asked how he knew it was a Stephenson machine, he said it had been in use many years and at one time had had a Stephenson label on it.

The “Arkansas Regulations for Blood Alcohol Testing” along with addendum letters published by the Arkansas Department of Health were introduced as an exhibit. Several Stephenson model simulator machines are listed as approved. Officer Keyes could not say that the machine used in this case was any one of the approved models.

The court ruled that the results of the test and the testimony of the officer were to be excluded because the officer did not know whether the particular simulator used was on the approved list. The court ultimately ruled that the State had failed to meet its burden of proof without the test results and dismissed the charges against appellee. The State appeals the ruling striking the testimony of Officer Keyes.

The state argues that the trial court has created a new burden of proof in these cases and that it is one which is not required by the statute or supported by the case law. It is asserted that there is no requirement in the rules of evidence or of criminal procedure that a certified intoxilyzer operator possess firsthand knowledge concerning the brand and make of the simulator that he used to calibrate the Intoxilyzer at issue, and our holding in Smith v. State, 301 Ark. 569, 785 S.W.2d 465 (1990), cited to support that assertion.

The precise holding of the Smith case is as follows:

Arkansas Code Ann. § 5-65-206(d)(l) (1987) does not require the machine operator’s testimony, or his certificate, as a prerequisite to the introduction of chemical analysis test results. This court adopts the rationale of the Arkansas Court of Appeals in its holding in the case of Johnson v. State, 17 Ark. App. 82, 703 S.W.2d 475 (1986), that the provision only requires that the person who calibrates the machine, and the person who operates it, will be made available for cross-examination by the defense upon reasonable notice to the prosecutor.
However, there is ample evidence in the record of this case to uphold the verdict of the lower court aside from the results of the breathalyzer test.

The case does hold that the certificate of the officer and his testimony are not threshold requirements under the statute but makes it equally clear that the officer should be available for cross-examination. The only logical purpose for such cross-examination is for the defense counsel to challenge the certification either of the machine or of the officer in the context of the particular case. This is precisely what occurred here. The officer appeared for cross-examination and during his testimony revealed that he did not know for certain what simulator he was using because the device used had lost its label. He assumed it was one of the two approved devices because the entire unit had been approved by the health department, but nothing in the testimony made it clear that this particular device is the one that is approved.

The propriety of the certification of the machine was called into question in the mind of the trial judge, and he was not convinced that the officer had adequate knowledge to state with certainty that the simulator he used was approved. This led the trial judge to conclude that the test results and the testimony with regard to the test lacked an adequate foundation.

The question in this appeal is not whether the trial court created a new evidentiary requirement. Rather, it is who is the proper party to make this type evidentiary determination, and is it permissible for us to second guess the trial court in this regard? In other contexts our case law supports the conclusion that, in evidentiary determinations, the trial court has wide discretion, and we will not reverse absent an abuse of that discretion. Pollard v. State, 296 Ark. 299, 756 S.W.2d 455 (1988). This is especially true where the issue is one of witness credibility. Hurst v. State, 296 Ark. 448, 757 S.W.2d 558 (1988). Any conflict in a witness’ testimony is for the trial court to resolve. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). Determinations of an expert’s qualifications lie within this discretion and such a decision will not be reversed absent an abuse. Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988).

The trial judge was acting within his discretion in permitting the inquiry. He could have held substantial compliance was shown based on the officer’s assertions that this was the approved device at the time of the certification, and it is doubtful we would have reversed. The judge characterized the problem as one of the testimony of Officer Keyes lacking a proper foundation. We cannot say that amounted to an abuse of discretion.

While Ark. R. Crim. P. 36.10(c) provides that the attorney general must make the determination whether this is the sort of case we should take on appeal, the ultimate decision rests clearly with this court. If we were to reach the issue posed, it would have no universal affect on the administration of the law. The decision we are asked to review was factual.

Our rule on taking appeals by the state in criminal cases dates back as far as §§ 3410-11 of Crawford & Moses Digest which contained the same language permitting such appeals for the correct and uniform administration of justice. In State v. Massey, 194 Ark. 439, 107 S.W.2d 527 (1937), we were presented with an appeal by the state of a trial court’s decision that evidence to corroborate accomplice testimony had been insufficient. We regard that as similar to the question here of whether the foundation evidence was sufficient. We wrote “[i]n this case the error complained of did not relate so much to a question of law as one of fact, or a mixed question of law and fact. It does not appear to be of sufficient importance under the provisions of the statute as to require an opinion upon the correctness of the conclusion reached by the trial judge.” See also State v. Spear, 123 Ark. 449, 185 S.W. 788 (1916).

Appeal dismissed.

Hays and Glaze, JJ., dissenting.

Steele Hays, Justice,

dissenting. The trial court excluded the results of an Intoxilyzer Test because the officer, B.R. Keyes, did not have personal knowledge that the simulator he used to calibrate the Intoxilyzer was a brand of simulator approved by the Arkansas Department of Health in its Regulation 4.31. In so doing, I believe the trial court placed a greater burden on the state than either our statutes or case law require. The state is fully justified, as I see it, in appealing that ruling.

It was not disputed at trial that the Breathalyzer was approved and certified, rather, at issue was a Stephenson “simulator” used to test the Breathalyzer. Keyes testified that he knew it was a Stephenson simulator and that inspectors from the Department had approved that specific simulator on several prior occasions, most recently just before the test was administered to Massery. Since we have consistently held that substantial compliance with regulations of the State Health Department in DWI cases is sufficient, I submit the trial court erred and this court should so state. Smith v. State, 301 Ark. 569, 785 S.W.2d 465 (1990); Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988); Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987); Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985); Hegler v. State, 286 Ark. 215, 691 S.W.2d 129 (1985); Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1985). In Johnson v. State, 17 Ark. App. 82, 703 S.W.2d 745 (1986), the Court of Appeals summarized the constituents of proof required in these cases:

In sum, § 75-1031.1(c) [Ark. Code Ann. § 5-65-206 (1987)] requires (1) the method of testing must be approved by the Board of Health, (2) the machine must have been certified in the three months preceding arrest, and (3) the operator must have been trained and certified. Neither a senior operator’s certificate nor an installation certificate are mentioned in the statute. Simply put, § 75-1031.1 does not require proof of an installation certificate before test results may be admitted into evidence.

Throughout its history this court has shown that it is singularly disinclined to allow an appeal where the state seeks merely a declaration of error, a ruling which does not purport to change the outcome, since the defendant is constitutionally immune from further prosecution. In State v. Hand, 6 Ark. 169 (1845) and State v. Denton, 6 Ark. 259 (1845), this court refused to entertain appeals by the state because the defendants had been acquitted and, hence, “the questions sought to be raised are mere abstract questions without any cause legally existing upon which the decisions of this court could have effect.” Similarly, m State v. Biscoe, 12 Ark. 683 (1852), we dismissed the state’s appeal because the issue was “simply a dry abstract point of law.”

In 1846 the legislature attempted to correct State v. Hand, supra, by statutory provisions appearing in Goulds Digest, Chap. 52, Sec. 245, which gave a right of appeal by the state. But in State v. Jones, 22 Ark. 331 (1860), the Supreme Court continued to adhere to the dogma that appeals by the state were merely attempts to authorize “abstract questions of law to be certified to the court for its opinion.” Id. at 334.

In 1869 the legislature again attempted to facilitate appeals by the state, this time expressly authorizing the Attorney General to determine when an appeal should be pursued by the state, an agency of government, one might argue, better suited than this court to judge whether the prosecution of criminal cases would be adversely affected by a ruling of the trial bench. That effort met with no greater success. In State v. Cox, 29 Ark. 115 (1873), the state’s appeal was dismissed as being procedurally flawed and in State v. Withrow, 47 Ark. 552 (1886) the Supreme Court affirmed the trial court in sustaining a demurrer to an indictment for obstructing a public road, finding the state’s appeal too triffling — “our time may be more profitably employed than by settling immaterial differences of opinion between prosecuting attorneys and circuit judges.”

The trend continued with State v. Spear and Boyce, 123 Ark. 449, 185 S.W. 788 (1916), State v. Gray, 160 Ark. 580, 255 S.W. 304 (1923), and State v. Mills, 160 Ark. 194, 254 S.W. 468 (1923), where the appeals were dismissed as being simply factual disputes. Notably, Chief Justice McCullough and Justice Humphreys dissented in Gray, pointing out that the appeal involved a “clear-cut question of law,” to which the Attorney General had properly sought an answer, “but the majority have announced the conclusion that the appeal should be dismissed for the reason that it is not of sufficient importance to warrant the appeal.”

Today’s decision, though consistent with the long tradition, employs a rationale never before resorted to — that because evidentiary rulings by trial courts involve discretion and because we do not reverse such rulings absent an abuse of discretion, we cannot say discretion was abused in this instance. Therefore, reasons the majority, the appeal is not cognizable under Rule 36.10(c). While the view that evidentiary rulings involve a measure of discretion is unquestionably sound, it has scant relevance here. We are not asked to reverse this case for a second trial, but merely to declare for the guidance of the bench and bar that a challenged ruling on evidence was correct or incorrect. Clearly there is something to be gained by our doing so, and nothing whatever to be lost, since the defendant is entirely beyond additional prosecution. That was the course taken in State v. Dulaney, 87 Ark. 17, 112 S.W. 158 (1908), one of the rare instances where this court has reached the merits of an appeal by the state. In Dulaney, the state proffered testimony of a witness that money paid to a defendant, a state representative, was intended to influence his vote on pending legislation. The trial court rejected the evidence because there was no testimony of an agreement as to a particular bill. The defendant was acquitted and the state appealed. This court declared the rejection of the testimony was error. Abuse of discretion did not concern the court in Dulaney, nor did it concern the Court of Appeals in State v. Harvest, 26 Ark. App. 241, 762 S.W.2d 806 (1989). Nor should it operate in this case to abort a simple ruling on the merits of the question raised.

Glaze, J., joins in dissent.

       See Criminal Code, § 329, from which A.R.Cr.P. Rule 36.10(c) is patterned.