author: Per Curiam.

text:
    Clarence GAY v. STATE of Arkansas
    CR 86-89
    713 S.W.2d 232
    Supreme Court of Arkansas
    Opinion delivered June 9, 1986

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

On April 21, 1986 we granted appellant Clarence Gay permission to proceed with a belated appeal of his 1984 conviction for rape. We said that Joe Villines, the attorney who had represented Gay at trial, would continue to represent him on appeal. The record has been lodged with this Court and counsel’s brief is scheduled to be filed June 28. Appellant now asks that Villines be relieved as counsel and he be permitted to proceed without the services of an attorney.

An appellant will be granted the right to proceed pro se if he agrees to abide by the rules of this Court. Green v. State, 277 Ark. 129, 639 S.W.2d 512 (1982); see also Faretta v. California, 422 U.S. 806 (1975). Appellant states that he will proceed with the appeal “nicely, as possible, and abide by all court rules,” but he does not indicate whether he can submit a typewritten brief as required by the rules. He also has not submitted an affidavit refusing services of an attorney on appeal in accordance with our Rule 8(d).

A criminal appellant is entitled to an attorney on appeal. If he elects to forgo the services of counsel, it is imperative that he do so intelligently and with full knowledge of his responsibilities. Since it is not clear from appellant’s motion that he is making an intelligent waiver of his right to counsel, his motion will be denied until such time as he files a subsequent motion in which he states that he can abide by the rules of procedure, including the rule that all briefs be typewritten. He must further attach to the motion an affidavit refusing services of an attorney on appeal. When the brief is filed, he must submit an affidavit verifying that he prepared the brief without the paid assistance of any inmate. Ark. Sup. Ct. R. 8(d).

Motion denied.

Purtle, J., would grant.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Elsie ALEXANDER et al. v. Jerry C. CHAPMAN and CRESTVIEW FAMILY CLINIC, P.A.
    85-167
    711 S.W.2d 765
    Supreme Court of Arkansas
    Opinion delivered June 16, 1986

      Perroni & Rauls, P.A., by: Samuel A. Perroni-, and Wilson, Engstrom & Corum, by: William R. Wilson, Jr., for appellants.

      Friday, Eldredge & Clark, by: W.A. Eldredge, Jr. and Calvin J. Hall, for appellees.
   Darrell Hickman, Justice.

This is a medical malpractice case. John Alexander was 53 years old when he died on October 1, 1979, from a heart attack. Dr. Jerry Chapman and the clinic with which he was then associated, Crestview Family Clinic, treated Alexander several times for symptoms that could have been heart related. On July 14 and 24,1979, he was hospitalized and treated by Chapman and his associates. He was seen thereafter on August 1, 16 and 19, and September 26. Dr. Chapman was telephoned September 28 because Alexander was weak and had chest pains. He died three days later. Alexander’s widow and son sued, claiming that the appellees failed to diagnose and treat Alexander’s illness and, thus, failed to prevent his death. The trial lasted seven days, and the jury returned a verdict for the appellees.

The question on appeal is whether the trial court abused its discretion in failing to deal with the trial tactics of the appellees’ attorney. Among the allegations are that counsel repeatedly and continually led witnesses and violated a pretrial order that prohibited the mentioning of certain matters. We do not, as a matter of course, reverse on the basis of such allegations even if they are borne out by the record. See, e.g., Missouri Pac. R. Co. v. Sullivan, 197 Ark. 360, 122 S.W.2d 947 (1939).

This case, however, presents the unique situation where counsel was repeatedly admonished and the court repeatedly sustained objections to the leading questions, was even presented with a motion to strike the testimony, yet counsel’s conduct was not stopped. The trial court decided that striking the testimony was too severe a sanction, yet was unable to stop the leading. Counsel also violated pretrial orders. After the trial, a motion for a new trial was filed, citing violations of the pretrial order, comments by appellees’ counsel, and counsel’s conduct in examination of the witnesses. Now we must decide whether the trial court’s decisions at the trial and in denying the new trial were an abuse of discretion. In doing so we must necessarily decide whether conduct of counsel, ordinarily a matter which lies within the court’s sound discretion, can go so far that some sanction must be taken. There are limits to everything and when counsel cannot or will not abide by the rules of evidence and of the trial court, and the trial court cannot stop the violations, we have to. The contention on appeal is that although no one instance of counsel’s conduct would be cause for reversal, all of the violations combined to deny the appellants a fair trial. We have to agree and the only acceptable course is to reverse the trial court.

Before trial, appellants moved that the appellees be prohibited from mentioning certain matters during voir dire, arguments or any part of the trial. In a pretrial order the trial court granted the motion in the following instances relevant to this appeal: (1) there was to be no suggestion that a verdict for the appellants would be tantamount to a “conviction” of the appellees; (2) there was to be no suggestion of any “credibility enhancing” items such as religious activities; and (3) no suggestion that a verdict for the appellants would have a damaging effect on medical services.

The order was clearly violated in closing argument when appellees’ counsel said, “you see, even $ 1.00 convicts my client of malpractice, doesn’t it?” (Italics supplied.) Upon objection, the trial court asked counsel to rephrase the statement.

During opening and closing arguments, appellees’ counsel stated that next to God, his family and his patients, the law suit was the most important thing in the doctor’s life. No objection was made beyond the motion in limine and in the motion for a new trial. This was not a flagrant violation of the pretrial order.

In closing, appellees’ counsel also said, “A judge once said, we’ve got to be careful in these cases not to make doctors guarantors of good results or a cure.” Appellants’ counsel objected that what another judge said is not the law. The trial court essentially overruled the objection and then appellees’ counsel said, “And we must, therefore, be careful lest we find very few, if any, who would accept the responsibility of being a doctor, you see.” The appellants contended in their motion for a new trial and argue on appeal that this violated the pretrial order prohibiting any suggestion that a verdict for the appellants would have a damaging effect on medical services. Again the statement is not a clear and undisputable violation of the pretrial order, but it does touch on a subject that was ruled prohibited. When these violations are considered along with the continued leading of witnesses during the trial, the errors become more significant.

Leading questions were continually used in the examination of appellees’ experts. During direct examination of the appellees’ expert witnesses, there were 28 objections to leading questions. Once the court admonished counsel without being prompted by an objection. Fourteen objections were sustained. Three times there was no ruling. Twice the question was withdrawn by appellees’ counsel. The appellants’ objections were overruled nine times.

Before appellants’ counsel asked for the sanction that appellees’ counsel be prohibited from continuing to inquire after leading, the court admonished appellees’ counsel five times, four times of which were of the court’s own volition. For instance, once the court said, “[appellees’ counsel], it is [leading], sir. I would appreciate it if you would ask questions rather than making statements and asking is that true.” Another time the court said, “Yes, and I think that was pretty blatant leading that last time, [appellees’ counsel]. Please, sir, let’s please confine your questions to this gentleman to be questions.” Finally appellants’ counsel requested that if appellees’ counsel continued to lead, that he be prohibited from inquiring further into the subject. The court responded to the request by admonishing appellees’ counsel:

The Court: Well, let’s just take the last question, [appellees’ counsel]. ‘State whether or not millions have been spent in research into the causes of arteriosclerosis. . .’or whatever, however it ended. You know, obviously he’s going to say. And in effect you’re telling him what the fact is and you’re telling the jury what the fact is and that has nothing to do with experts or anything else. That’s just telling the witness, isn’t this true, isn’t this true, isn’t this true. And that’s what they’re objecting to and that’s what we’re seeing a lot of. I suppose the proper way to ask that question is, what’s being done in medical science to cure arteriosclerosis? And he would say, well, we’re spending millions of dollars; rather than saying isn’t millions of dollars being spent; isn’t this a disease that’s hard to cure; aren’t people dying everyday from this disease, you know. Instead of saying, what’s the effects of this disease; well, people die everyday. That’s the reverse of it. That’s what you’re objecting to.

After an interjection by appellants’ counsel, the court continued:

Well, I know but I’m saying that’s the last question that was asked and that’s just clearly a leading question, whether you say, state whether or not or isn’t it true or whatever.
I don’t know what the solution is because we’re seeing a lot of leading questions and I certainly don’t want to resort to that. Would it suffice if I just say, let’s please, without having to go through this again, just please be circumspect in the questions you ask so that we’re asking the party to state his testimony rather than yes or no, or yes, that’s a fact, or no, that’s not a fact, I agree with that or I don’t agree. Which is really what you’re asking yes, I agree with what you say, when you say state whether or not; yes, I agree with what you’re saying, [counsel]. In which case as I said earlier, what we’re doing is you’re testifying or [appellees’ counsel] testifying when he says it and all he’s saying is, yeah, I agree with that fact you’ve just stated. And the jury says, well, [appellees’ counsel] says that’s true and the doctor says it’s true, so —
The Court: I don’t think [appellees’ counsel] is intentionally leading these witnesses. He’s a tried and true trial attorney and he’s trying the case as he best knows how. I don’t think he’s intentionally saying, I’m going to get another one in here and do this. But the problem arises and the question is — it’s an ongoing problem — how to deal with this question. And I’m just advising [appellees’ counsel] I think we’re getting a lot of leading questions and relying upon him to protect us from that in the future.

After that there were five more objections to leading questions until appellants’ counsel asked that the responses be stricken. The trial court refused but admonished appellees’ counsel to “please confine your questions to questions.” There were seven objections to leading questions after that. At one time appellants’ counsel renewed their motion and the following colloquy occurred:

[Appellants’ counsel]: Secondly, I despair of what to do with respect to leading questions. If I continue to object, I’m going to not only alienate the jury, but it’s my impression that the defense counsel is trying to beat the Court down on leading questions. And not only do I run the risk of alienating the jury, but if the Judge overrules me when they’re leading, then that makes my other objections look bad. So I move to strike the testimony of all of the defense witnesses on the grounds that their testimony has been warped completely out of kilter by suggestive, leading questions. (Italics supplied.)
The Court: Well, of course I’m not going to do that. I don’t think it’s that serious. I think there is a constant problem with leading questions, [appellees’ counsel]. And I don’t know what to do about it either. I certainly don’t want to strike your witnesses, but there are a lot of comments — and I forget the one about the nurse, but, you know, I thought, gee whiz, what does that have to do with the case, which is harmless in itself, but I don’t know. Tell me what I do, [appellees’ counsel]. Tell me how to handle it. You tell me. (Italics supplied.)
[Appellees’ counsel]: Your honor, you’ve shown that counsel has a continuing objection to this and —
The Court: I don’t think you’re intentionally saying, I’m going to lead this man and lead this man. It’s just the patterns of the questions that keep coming up. I’m getting sensitive to it now because I expect [appellants’ counsel] to jump up every time there’s a leading question and say, oop, here we go again. And I’m getting sensitive to it and I’m getting overreactive to it in the sense I’m waiting for it each time because I’m waiting for [appellants’ counsel] to jump up. And they’re getting oversensitive to it because they’re very sensitive about the leading situation.
[Appellants’ counsel]: That’s the very importance of it right there, Your Honor. I know the jury is getting irritated with me for making what is a proper objection.
The Court: I don’t think they are frankly. Unfortunately my experience has been that the most obnoxious — of course you’re certainly not this — but the most obnoxious lawyers I have, in the sense I just finally said, sit down, we’ll note you object to everything, they win big verdicts. They’ve bothered the devil out of me. They don’t bother the jury at all. So anyway the most extreme cases of objection I’ve seen have apparently not bothered the juries at all. And of course, you’re not anywhere near anything like that. I’m just saying the worse case scenario I’ve seen has gotten some of the biggest verdicts, so I don’t know that even has an effect on the juries, much against our common belief in the legal profession.
But in any event all I can do is encourage [appellees’ counsel] to be more circumspect in your questions in the sense they’re not leading, and to ask the witness a proper question which elicits a statement from him rather than asking him to agree with your statement, and to avoid any gratuitous comments like we had of the nurse about whatever it was, which necessitated another bench conference.
I don’t think any great damage is being done to be honest with you, [appellants’ counsel]. I don’t think this is turning the case around and it’s a situation in which the questions would not have been answered the same way if they’d been asked properly. It’s not a situation where these witnesses are being led down the path. I know it’s annoying to you and [appellants’ counsel] and I know it’s bothering the devil out of you and I’m getting to be bothered now because I’m sensitive to you all jumping up, and properly so, and I’m getting sensitive to the whole thing myself. I don’t think it’s determining the outcome of this case by any way, mean shape or form. It’s just an annoying thing that’s bothering you and it’s beginning to bother me.
So I’m not going to strike the testimony. I’m going to caution [appellees’ counsel] once again to watch that and avoid any sidebar comments and to quit leading his witnesses. And we’ll note your objection for the record.

The motion was renewed one other time, and the trial court instructed the witness not to answer the leading question. Appellants’ counsel asked that a continued objection be noted, which it was.

Improper leading includes improper suggestion and improper ratification. Wigmore, Treatise on the Law of Evidence § 769: Callahan v. Farm Equipment, Inc., 225 Ark. 547, 283 S.W.2d 692 (1955). Suggestion occurs when a question indicates the answer desired and ratification occurs when a question is suggestive, contains factual detail which could and should originate with the witness and the witness adopts the detail and the form in which it is expressed. Denbeaux and Risinger, Questioning Questions: Objections to Form in Interrogation of Witnesses, 33 Ark. L. Rev. 439 (1979).

Following are examples where counsel improperly suggested the desired answers from his expert witnesses:

Q. All right. In your experience, does the computer overread or under read EKGs?
A. The computer tended to overread EKGs:
Q. And that’s the way it should be, don’t you agree?
A. I would prefer it that way.
Q. So that all doubt is resolved on behalf of the patient to try to give patient help if he needs it?
A. Every benefit of the doubt.
# * # % * *
Q. Now we know that there was no myocardial infarctions within one year prior to July of 1979 as a matter of truth and fact, don’t we?
Q. Then Doctor, it’s unfortunate but true that in heart attack cases we really don’t know about prior heart attacks and whether or not for sure the patient had one until, unfortunately, some day the patient dies and you can do an autopsy on him, isn’t that true?
‡ * * % Hí ‡
Q. And the practice of medicine is based on what, Doctor?
A. The practice of medicine is based on, as nearly as possible, gathering objective data and then you have to interpret that data.
Q. And who has to interpret it?
A. The physician.
Q. And that’s judgment, isn’t it?
A. And that’s judgment.
Q. Professional judgment.
A. That’s professional judgment.
Q. Human judgment.
A. Human judgment.

Some of the sanctions for leading questions recommended by the authors of the cited law review article are: striking the improper question and permitting a proper one, admonishment at the bench or before the jury, striking the improper question and refusing to allow counsel to reask, contempt, and mistrial. Denbeaux and Risinger, supra.

Here counsel repeatedly ignored the trial court’s warnings concerning leading questions. The court conceded it could not or would not take action beyond admonishment. Only once did it instruct the witness not to respond. If counsel will not comply with the trial court’s requests, then some sanction, with teeth, must be used against him. We are certain the leading would have stopped had the trial court granted appellants’ motion to preclude further inquiry. The appellants were entitled to have the leading stopped.

Trial courts by necessity are granted great power and discretion to preserve the order of their courtrooms. They have at their command numerous sanctions to see that rules are followed. Because the sanctions exist they are usually not necessary, but sometimes they must be used. Some sanctions should have been used in this case. The appellants were entitled to have the case presented to the jury in the words of witnesses not counsel. In finding an abuse of discretion in not employing those sanctions, we emphasize that our decision is necessarily limited to the facts this record presents.

The appellees urge us to find no error because the appellants failed to move for a mistrial, to object during closing argument, or to demonstrate prejudice. In this case, as counsel for the appellants pointed out, it would have been to the appellees’ benefit to have a mistrial declared since it is they who are seeking to preserve the status quo. Repeated objections were made and timely motions made giving the trial judge an opportunity to stop the tactics. The trial judge essentially conceded he could not stop counsel. The impression left with the jury could not help but prejudice the appellants’ case.

While the responsibility for the conduct of the trial falls on the trial court, experienced counsel should not go too far in testing the patience of the system. Besides continued leading and violating the pretrial order, appellees’ counsel asked an expert whether he believed Dr. Chapman to be negligent. Counsel knew full well that the answer was an impermissible opinion on the ultimate issue and withdrew the question upon objection. There should be no attempt to elicit such evidence on retrial.

Appellants make other arguments about sidebar comments of appellees’ counsel and statements made in argument that were allegedly unsupported by the evidence. The instances will not occur on retrial, and, even so, the trial court’s ruling will not be disturbed on appeal. We have no way to determine simply from the record the effect of these comments or the spirit in which they were made and we must rely on the trial court’s sound discretion.

Reversed and remanded.

Holt, C.J., and Purtle, J., not participating.


author: John I. Purtle, Justice.

text:
    DEAN WITTER REYNOLDS INC. v. Betty Lou DEISLINGER
    86-33
    711 S.W.2d 771
    Supreme Court of Arkansas
    Opinion delivered June 16, 1986

      Wright, Lindsey & Jennings, by: Peter G. Krempe & Walter McSpadden, for appellant.

      Robert L. Brown, P.A., by: Robert L. Brown, for appellee.
   John I. Purtle, Justice.

This is an appeal from the action of the circuit court that set aside an arbitration award. In setting aside the award the court made three findings: (1) that the transcript of the arbitration hearing was incomplete, (2) that the arbitrators rejected relevant evidence and (3) that the arbitration panel exhibited partiality in favor of the appellant. We do not agree with any of the reasons stated for setting aside the award; therefore, we reverse the order of the circuit court.

On November 18, 1981, the appellant and the appellee entered into an agreement whereby the appellee was to receive $18,000.00 over a period of three months. The payments were to be made in three equal payments of $6,000.00. The appellee agreed that she would remain in the appellant’s employment for thirty-six (36) months. On January 27, 1982, the appellee submitted her resignation. Approximately one month later the appellant demanded repayment of $6,955.17, representing previously advanced payments. The appellee refused repayment and on August 31,1982, the appellant filed a claim against Deislinger for $13,950.00. The appellee filed an answer denying the claim and counterclaimed for $25,000.00 damages for breach of contract.

Subsequently the parties voluntarily agreed to submit the dispute to arbitration. Three members were selected to hear the dispute; however, on the day scheduled for the hearing one member failed to appear. Upon agreement of the parties, the hearing proceeded with the two-member panel. The panel proceeded in accordance with the National Association of Securities Dealers, Inc. (NASD) Code of Arbitration Procedures. During the hearing the arbitrators refused to admit evidence concerning the appellant’s payments to other employees. The arbitrators found this to be irrelevant. The reviewing court found that this evidence should have been admitted pursuant to Unif. R. Evid. 406.

The panel awarded appellant the sum of $7,813.70 and denied appellee’s counterclaim. Upon the petition of the appellee, the Pulaski Circuit Court set aside the arbitration award. This appeal is from that order.

The Arkansas arbitration and award procedures are set forth in Ark. Stat. Ann. § 34-501 (Supp. 1985) et seq. Vacating an arbitration award is specifically controlled by Section 522. Arkansas Stat. Ann. § 34-522 (a)(2) states: “Upon application of a party, the Court shall vacate an award where . . . there was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party.” This statute further provides: “But the fact that the relief was such that it could not or would not be granted by a Court of law or equity is not ground for vacating or refusing to confirm the award.”

In the instant case the court found that the panel demonstrated on numerous occasions their bias in favor of the appellant. Subsection (2), quoted above, appears to be the only statutory ground used by the court in setting aside the award. We find that no partiality was demonstrated.

56 A.L.R. 3d 697 (1973), Setting Aside Arbitration Award on the Ground of Interest or Bias of Arbitrators, states that it is well established that the interest, partiality, or bias which will overturn an arbitration award must be certain and direct, and not remote, uncertain or speculative. This authority also states that the party attempting to set aside the award bears the burden of proof to establish partiality. Even though Unif. R. Evid. 406 may have permitted some of the excluded evidence to have been considered in a court of law or equity, the exclusion of this evidence in an arbitration proceeding is not a statutory ground for vacating the award. Section 34 of the NASD Code of Arbitration states: “The arbitrators shall determine materiality and relevance of any evidence proffered and shall not be bound by rules governing the admissibility of evidence.” The NASD Code also states that no record of arbitration proceedings shall be kept unless a party or an arbitrator requests that a record be made. The record of the arbitration hearing was complete except for a few gaps of short duration.

In Arkansas arbitration is strongly favored by public policy and is looked upon with approval by courts as a less expensive and expeditious means of settling litigation and relieving congestion of court dockets. McEntire v. Monarch Feed Mills, Inc., 276 Ark. 1, 631 S.W.2d 307 (1982). We have recently addressed the weight to be given an arbitration award in Wessell v. Crossett Public School Dist. #52, 287 Ark. 415, 701 S.W.2d 99 (1985). There we stated: “The decision of the arbitration board on all questions of law and fact is conclusive. [Citations omitted.] The court shall confirm an award unless grounds are established to support vacating or modifying the award.”

The parties to this action voluntarily entered into an arbitration agreement and further agreed that two arbitrators would decide the dispute. Having entered into this agreement, there is a moral and legal duty to abide by the award in the absence of valid reason not to do so. Simply being dissatisfied with the results is not a good reason for setting aside the award.

Neither the failure to keep a record nor the failure to follow the rules of evidence is enumerated in Ark. Stat. Ann. § 34-522 as being a ground for setting aside an arbitration award. Nor does the record or citation of authority support the allegation of partiality on the part of any member of the panel. The application of the arbitration statutes to the facts of this case is not challenged by either party.

The order of the court was in error and we reverse and remand with instructions to vacate the order setting aside the arbitration award.

Reversed and remanded.


author: Steele Hays, Justice.

text:
    Johnny BARGER v. Margaret Ann FARRELL
    86-26
    711 S.W.2d 773
    Supreme Court of Arkansas
    Opinion delivered June 16, 1986

      Laser, Sharp & Mayes, P.A., for appellant.

      Mitchell, Williams, Selig, Jackson & Tucker, by: W. Kirby Lockhart, and Tracy A. Barger, for appellee.
   Steele Hays, Justice.

This case concerns a property damage claim arising from an automobile accident between Johnny Barger, appellant, and Margaret Ann Farrell, appellee. Barger admitted fault and while Ms. Farrell’s late model BMW was being repaired, he paid the estimated cost of repairs, $5,145.40, and a portion of the cost of a rental vehicle. Later Ms. Farrell filed suit for an additional $4,000 in property damage and for additional loss of use.

The case was tried to a jury and negligence was conceded, thus the only issue was the extent of the plaintiffs damage. Ms. Farrell testified she bought the BMW 318 in May, 1983 for $18,800. The car, she thought, had depreciated about $1,000 during the year she had driven it. She said while the car was being repaired additional damage was discovered, adding $322.87 to the original estimate. Warden Motors had offered her $8,000 for the car in its wrecked condition. She declined that offer but after the car was repaired she traded it for another BMW, receiving an allowance of $13,390.20.

The only other witness, Mr. Bobby Ray Miller, was a salesman for Warden Motors when Ms. Farrell’s car was repaired and traded. He had ten years experience in automobile appraisal. It was he who estimated the repairs to the wrecked vehicle and who sold the second BMW to Ms. Farrell. He appraised her car after being repaired for $13,500. He thought the car had a value of $17,450 before the accident, based on a comparable model Warden had for sale. He said a car that has been damaged does not have the same value as one that has not been wrecked.

When Barger offered no proof, Ms. Farrell moved for a directed verdict in the amount of $5,417.87. The trial court directed a verdict and Barger has appealed. We reverse the judgment.

Appellant Barger relies largely on two rules of law: 1) in testing the propriety of a directed verdict the testimony of a party is not considered since such testimony is controverted as a matter of law (Little v. George Feed and Supply Co., 233 Ark. 78, 342 S.W.2d 688 (1961), and 2) the opinion testimony of an expert is entitled only to such weight as a jury elects to give it, even when such testimony is wholly uncontradicted. Curry v. State, 271 Ark. 913, 611 S.W.2d 745 (1981); American Bauxite Company v. Dunn, 120 Ark. 1, 178 S.W. 934 (1915).

[I, 2] Appellee Farrell cites us to cases holding that when evidence is wholly undisputed the court should take the issue from the jury, that a directed verdict should be granted where there is no substantial evidence to the contrary. Paul Hardeman, Inc. v. J.I. Hass Company, 246 Ark. 559, 439 S.W.2d 281 (1969); Brown v. Keaton, 232 Ark. 12, 334 S.W.2d 676 (1960). While these cases have general application to this case, they do not settle the issue presented. The fact is a party who does not have the burden of proof is not required to produce substantial evidence to offset the opposing proof. Shaeffer v. McGhee, 286 Ark. 113, 689 S.W.2d 537 (1985). Only when the proof of one party is so clear, convincing and irrefutable that no other conclusion could be reached by reasonable men should the issue be taken from the jury and decided by the court. We examined this situation in some depth in Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665 (1962), and in Morton v. American Medical International, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985).

Those cases involved issues of negligence. The plaintiffs had offered substantial evidence on the issue of liability and were appealing from a jury verdict for the defendants, who had offered little or no evidence in return. Spinks argued that the trial court erred in refusing a motion for judgment n.o.v., conceding that it was properly denied unless it can be said the trial court should have directed a verdict in favor of the plaintiff. Language quoted in that opinion is especially appropriate to this case:

Thus, no matter how strong the evidence of a party, who has the burden of establishing negligence and proximate cause as facts, may comparatively seem to be, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise.

The Morton case, supra, is similar. Mrs. Morton brought suit for injuries sustained in a fall in St. Mary’s Hospital in Russellville. She and others testified the floor was very slick, which no witness for the defendant refuted. Mrs. Morton appealed a jury verdict for the defendant on the premise there was no substantial evidence to support the verdict. In affirming, we cited United States Fire Insurance Co. v. Milney Hotels, 253 F.2d 542 (8th Cir. 1958), quoted above, and Clark v. Abe, 328 Mo. 81, 40 S.W.2d 558 (1931):

The burden was not on the defendant, but was on the plaintiff to make out the case stated in his petition. In a case where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence himself. The court has no right to tell the jury that it must believe the witnesses. The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unimpeached. (Our italics).

There are instances, to be sure, where a directed verdict for a plaintiff is proper. Two examples are Plunkett v. Winchester, 98 Ark. 160, 135 S.W. 860 (1911) and Arkansas Real Estate Co., Inc. v. Fullterton, 232 Ark. 713, 339 S.W.2d 947 (1960). But in those cases the defendants admitted facts in the pleadings and proof showing the plaintiffs to be entitled to the relief sought, and there was no question left for the jury to decide.

In this case Barger made no admission except as to negligence and he was entitled to have the amount of the plaintiffs damage decided by the jury. The jury could have disbelieved the plaintiffs proof altogether, or it could have believed it in part and rejected it in part. It could have decided the BMW hád depreciated more than the thousand dollars Ms: Farrell “thought” to have occurred during the year she drove it. Or it could have decided that aftér repairs the car was worth more than the $13,500 ascribed to it by the expert witness, Bobby Miller. His testimony concerning values before and after the collision was, after all, merely his opinion and was not binding on the jury. Those were matters which the defendant had a right to argue to the jury and it was error to deprive him of that opportunity.

Reversed and remanded.

       Presumably this figure includes $1,089 for loss of use, not an issue in the case.


text:
    Steven Robert ROGERS v. STATE of Arkansas
    CR 85-199
    711 S.W.2d 461
    Supreme Court of Arkansas
    Opinion delivered June 16, 1986

      Wood Law Firm, by: Steven R. Davis, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Steven Robert Rogers was found guilty of two counts of aggravated robbery and one count of kidnapping. Pursuant to Ark. Stat. Ann. § 41-1001, the court instructed the jury that Rogers had been convicted of three prior felonies and the jury fixed tjie sentences at twenty years on each count, which the court ordered to be served consecutively. We affirm the judgment.

Appellant first contends the convictions are void because the Information failed to comply with Article 7, Section 49 of our Constitution, which provides that the “[i]ndictments shall conclude: ‘Against the peace and dignity of the State of Arkansas’.” This information does conclude with the appropriate language, but, as appellant points out, several of our cases have held that the language must follow each count, which was not done here. Hall v. Lackmond, 50 Ark. 113, 6 S.W. 510 (1887); Williams v. State, 47 Ark. 230, 1 S.W. 149 (1886); State v. Hazle, 20 Ark. 156, (1859). However, this objection was not presented to the trial court and cannot be raised for the first time on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

The two remaining arguments are: the trial court erred in permitting the introduction of a certified copy of a docket sheet to prove one of appellant’s prior felony convictions and counsel’s failure to object to the introduction of the docket sheet constitutes ineffective assistance of counsel.

These arguments, like the first, are also subject to summary denial. There was no objection to the introduction of the docket sheet and claims of ineffective assistance of counsel may not be raised initially by appeal. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981).

Affirmed.


author: David Newbern, Justice.

text:
    Charles E. DOYLE v. CHILTON CORPORATION and CBM OF ARKANSAS, INC. d/b/a CREDIT BUREAU SERVICES and WORTHEN BANK AND TRUST CO., N.A.
    85-228
    711 S.W.2d 463
    Supreme Court of Arkansas
    Opinion delivered June 16, 1986
    [Rehearing denied July 7, 1986.]

      Nelwyn Davis Law Office, by: Nelwyn Davis, for appellant.

      Friday, Eldredge & Clark, by: Donald H. Bacon, for appellee Chilton Corp. and CMB of Arkansas, Inc. d/b/a Credit Bureau Services.

      Wright, Lindsey & Jennings, for appellee Worthen Bank & Trust Co., N.A.
   David Newbern, Justice.

The appellant Charles E. Doyle brought an action against the appellees after he was denied credit he sought to finance a motor home. Appellee Chilton Corporation is the parent corporation of appellee CBM of Arkansas, Inc., d/ b/a Credit Bureau Services. The appellant alleged that Credit Bureau Services, in compiling a credit report, violated the Fair Credit Reporting Act, codified at 15 U.S.C. §§ 1681-1681t. He alleged that Worthen Bank and Trust Co., N. A., had violated the reporting provisions of the same Act. Summary judgment was awarded to the appellees because the court found the Act was inapplicable as the credit was sought for commercial rather than personal purposes. The main question we must resolve is whether the court was correct in its interpretation of the Act and was thus correct in' concluding there was no remaining issue of material fact to be determined. Ark. R. Civ. P. 56(c). We hold the Act was not properly construed, and because there are remaining material issues of fact the judgment must be reversed and the case remanded.

In their summary judgment motion the appellees relied on the deposition of the appellant which revealed these facts: The appellant and his brother, Ronnie Doyle, wished to purchase a motor home which they would own jointly. They found one they wanted to purchase at a dealership. They arranged to purchase it and asked the dealer to arrange the financing. A credit application was filled out, and the dealer submitted it to Worthen. Worthen had a credit check performed by Credit Bureau Services. When Charles returned to the dealer he was informed the financing request had been rejected by the bank.

The dealer gave Charles no reason for the refusal of credit. A few days later, Charles called Worthen and was told the refusal “had to do with the. . . Credit Bureau saying something about a bad credit card.” Charles then called Credit Bureau Services and was told the information would not be revealed on the telephone but that he would have to write to inquire. He wrote to Credit Bureau Services and received a credit sheet from which he concluded the poor credit record revealed was that of another Charles Doyle. The credit sheet referred to two accounts with J.C. Penney Co., differentiated by their computer identification numbers. One was the account of the appellant and his wife. The other account, in which there was a delinquency, was that of the other Charles Doyle. The appellant called the agency again to inform it of the mistake. He was told that Credit Bureau Services could not make the change and he would have to straighten it out with J.C. Penney Co. The information he received by telephone from the J.C. Penney Co. Dallas office was that J.C. Penney Co. was not at fault, and the credit agency would have to straighten it out.

Charles Doyle then hired an attorney to pursue the matter, and his credit file at Credit Bureau Services was eventually changed to remove the negative part but not until after interest rates had gone up dramatically and he had decided not to obtain financing for the purchase.

1. The Statute

Section 1681 e(b) contains the language upon which the appellant’s claim is based. It provides:

Whenever a consumer reporting agency prepares, a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.

Thus it becomes crucial to know whether Credit Bureau Services, the consumer reporting agency, in this case prepared a “consumer report” as defined by the Act. Section 1681a is the definitions section. It provides, in relevant part:

(d) The term “consumer report” means any . . . communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, [or] credit capacity . . . which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for (1) credit. . . to be used primarily for personal, family, or household purposes. . . .

2. The Claim Against Credit Bureau Services

Credit Bureau Services argued below, and they argue here, that because Mr. Doyle stated in his deposition that he intended to use the motor home primarily in his business the loan in prospect was a commercial loan rather than a consumer loan and that, therefore, the Act is inapplicable and summary judgment was appropriate. Credit Bureau Services cites Sizemore v. Bambi Leasing Corp., 360 F. Supp. 252 (N.D. Ga. 1973) in which it was held that an application for credit made by “G. Sizemore Company” was for commercial purposes and thus not within the coverage of the Act. In that case the credit of the company proved to be satisfactory, but a subsequent report on Mr. Sizemore’s personal credit rating was not, and the credit was thus denied. Although it is troublesome that the credit was denied on the basis of Mr. Sizemore’s personal credit rating, the holding of the case does not support Credit Bureau Services’ argument here because the application of Mr. Doyle was not made in the name of his company or any company for which he worked. Any credit agency or user was obviously on notice of the commercial nature of Mr. Sizemore’s application.

Also cited is Ley v. Boron Oil Company, 419 F. Supp. 1240 (W.D. Pa. 1976). In that case the court held that a report by a credit agency of certain personal information about an attorney was not a “consumer report” because it was not collected, used or intended to be used for credit purposes. Rather, it was requested and collected to obtain information about an attorney who had threatened Boron with suit. No credit purpose whatever was involved. The case is thus easily distinguishable from this one.

In D’Angelo v. Wilmington Medical Center, 515 F. Supp. 1250 (D. Del. 1981), also cited by Credit Bureau Services, the plaintiff contended he intended to use the credit for which he applied for personal purposes and thus the court should not have rendered summary judgment against him on his claim under the act although on his credit application he had checked a box indicating the credit was for commercial purposes. The court said:

The Act focuses on the user of consumer information (here Sunmark) and its purpose in obtaining and using that information. If it collects and uses the information for the purpose of deciding upon a proposed extension of primarily personal credit, the communication from the reporting agency is a consumer report within the meaning of the Act and both the agency and user have responsibilities under the Act. 15 U.S.C. § 1681e(a). If the purpose of the user involves an application for commercial credit, on the other hand, those responsibilities do not arise. For this reason, among others, the intent of the user with respect to information sought from a consumer reporting agency must be certified to that agency. Because of this focus on the use to which the information is put by the user, I conclude that Congress must have intended that the private-commercial dichotomy be drawn on the basis of the credit application which the consumer report is used to evaluate. [515 F. Supp. at 1254-1255.]

In the case before us we have no idea what was on the credit application. The application is not in the record. How can we know, and how could the trial'court have known, what Worthen knew about the purpose for which it was to use the information? We are similarly in the dark about what Credit Bureau Services knew, when it collected the information, about the purpose for which it was to be used. All we know for purposes of deciding this case, is that Mr. Doyle’s subjective intent, which the D’Angelo case says is irrelevant, was to use the motor home in his business but he applied in his own name and did not apply in the name of a business. If we focus on the purpose of Worthen, the user of the consumer information, as the statute requires, we are left with a material fact question.

The remark of the court in the D’Angelo case, quoted above, that the intent of the user must be certified to the collecting agency, states the requirement of § 1681 e(a). When this matter is tried, presumably Worthen’s certification to Credit Bureau Services as to whether the loan was to be for commercial or personal purposes will be in evidence and will be significant.

We are persuaded that the summary judgment motion of Credit Bureau Services should not have been granted. As the statute says, the purpose for which the report was collected and used or expected to be used is determinative of whether the Act applies. Those descriptions focus on the objective indicia of the purposes of the user and the collecting agency and not on the intent of the consumer. Even if the report is ultimately used for a purpose other than a personal, family or household credit application, it is a “consumer report” to which the Act applies if the information in the report was compiled and maintained for the purposes stated in § 1681b. Boothe v. TRW Credit Data, 523 F. Supp. 631 (1983). Whether the report in this case was compiled and maintained for those purposes is a remaining material issue of fact.

3. The Claim Against Worthen Bank and Trust Co.

The basis of the summary judgment in favor of Worthen was that the Act was inapplicable, therefore, the claim against Worthen for violation of § 168In will depend upon the factual determination discussed above.

Worthen, in arguing the inapplicability of the Act, relies primarily on Matthews v. Worthen Bank and Trust Co., 741 F.2d 217 (1984). There the plaintiff wanted to lease space in a “mini mall” for a liquor store. Worthen obtained a credit report on the plaintiff after the mall owners had discussed the prospective lease with a Worthen officer. The owners had a loan from Worthen which was being paid mainly from mall proceeds. In that case it is clear that Worthen, the user, knew of the commercial nature of the transaction, but beyond that, the opinion does not say that the information was to be used for credit purposes. The case becomes even less persuasive when it is realized that the credit report contained no derogatory information about the plaintiff. Speaking of the Matthews case, Worthen’s brief says:

The court found that the FCRA does not apply when a consumer’s credit report is released for a business purpose. The purpose for which the information was originally collected was not even deemed worthy of discussion by the court. [Emphasis in the original.]

In the first place, we do not know if it was argued that the purpose of collection was significant. Secondly, the per curiam opinion said:

We find that this particular transaction was exempt from the FCRA because the credit report was used solely for a commercial transaction. [741 F.2d at 219.]

The term “released” is not used in the opinion. The term “used,” of course, appears in § 1681 a(d) and, as noted above, becomes the focus of inquiry as to the applicability of the Act.

Worthen’s second argument is that even if the Act applies, Worthen complied when it gave Mr. Doyle the information after his request. If, upon trial of this case, the court finds the Act was applicable, presumably there will be more substantial evidence as to whether Worthen’s reply to Mr. Doyle’s question constituted compliance with § 1681m.

4. Conclusion

When the purpose of the Fair Credit Reporting Act is examined it becomes clear it could apply in this case. Section 1681(b) provides:

(b) It is the purpose of this subchapter to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information in accordance with the requirements of this subchapter.

The information upon which the appellant was denied credit was obtained from a credit card account with the J.C. Penney Co. The appellant testified it was a charge account used primarily by his wife. It is obviously the sort of information collected and disseminated daily by credit reporting agencies with respect to consumer credit applications. It is the sort of information as to which § 1681e(b) requires “reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.”

Reversed and remanded.


text:
    Willie Ray MACKEY v. STATE of Arkansas
    CR 86-48
    711 S.W.2d 462
    Supreme Court of Arkansas
    Opinion delivered June 16, 1986

      Hurst Law Office, by: Q. Byrum Hurst, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Joel O. Huggins, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant was convicted of first degree murder by a “death qualified” jury. We affirmed. Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983). He petitioned us for permission to seek post conviction relief in the trial court pursuant to Ark. R. Crim. P. 37 on the ground that he had been denied due process because potential jurors who had expressed unwillingness to impose the death penalty had been excused and thus he was tried by a conviction prone jury rather than one composed of a true cross-section of persons in the community. We denied his petition for two reasons. First, it was an issue which could have been, but was not, raised at his trial in the Rule 37 petition, and, if proven, would not have voided the conviction. Second, we had repeatedly held that a so-called “death qualified” jury was not unconstitutional. Mackey v. State, 286 Ark. 188, 690 S.W.2d 353 (1985).

The appellant then sought to have his sentence set aside pursuant to Ark. Stat. Ann. § 43-2314 (Supp. 1985) on the basis that it had been imposed in an illegal manner, again claiming the sentence was invalid because it was imposed by a “death qualified” jury. The trial court denied the relief requested.

We affirm again. Even had this issue not been waived by failure to raise it at the trial level, we have consistently held that “death qualified” juries are not unconstitutional. See, e.g., Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985); Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983). Our view of the matter has recently been upheld by the United States Supreme Court in Lockhart v. McCree, Case No. 84-1865, May 5, 1986.

Affirmed.


author: John G. Lile, Special Justice.

text:
    James A. RAGAN, RILEY’S INC., On Behalf of Themselves and All Other Similarly Situated Taxpayers v. Donald VENHAUS, et al.
    85-109
    711 S.W.2d 467
    Supreme Court of Arkansas
    Opinion delivered June 16, 1986

      Mitchell, Williams, Selig, Jackson & Tucker, by: Eugene G. Sayre and Joyce Kinkead, for appellants.

      Henry & Duckett, by: Stephen L. Curry, for appellees Donald Venhaus, County Judge; William R. Tedford, Treasurer of Pulaski County, Arkansas; and Pulaski County, Arkansas.

      Arkansas Office of Revenue Legal Counsel, by: Wayne Zakrzewski, for appellee Charles D. Ragland, Commissioner of Revenues of the State of Arkansas.

      Mark Stodola, Little Rock City Attorney, by: Carolyn Witherspoon, for appellees Jack Murphy, Treasurer of the City of Little Rock, Arkansas, and the City of Little Rock, Arkansas.

      Steve Clark, Att’y Gen., by: E. Jeffrey Story, Asst. Att’y Gen., for appellee Jimmie Lou Fisher, Treasurer of the State of Arkansas.

      Jim Hamilton, North Little Rock City Attorney, by: Michael Emerson, for appellees Mary Ruth Morgan, Treasurer of the City of North Little Rock, Arkansas, and the City of North Little Rock, Arkansas.

      Bob Dawson, Sherwood City Attorney, for appellees Amy Saunders, Treasurer of the City of Sherwood, Arkansas, and the City of Sherwood, Arkansas.

      Keith Vaughn, Jacksonville City Attorney, for appellees Lula M. Leonard and City of Jacksonville, Arkansas.
   John G. Lile, Special Justice.

Appellants filed suit in Pulaski Chancery Court claiming that the 1% compensating use tax imposed and collected by appellees in Pulaski County since April 1,1982, constitutes an illegal exaction. The chancellor held that appellees’ imposition of the use tax was not an illegal exaction. We reverse and remand.

The facts were virtually all stipulated and are undisputed by the parties. The Pulaski County Quorum Court adopted Ordinance 81-OR-71 on December 8, 1981, calling for a special election in Pulaski County to be held February 2, 1982. The official ballot and voting instructions called for the voters to vote for or against the adoption of a 1% sales tax pursuant to the provisions of Act 991 of 1981, as amended by Act 26 of 1981, First Extraordinary Session, but no mention was made of a 1% compensating use tax. The proposition received a favorable majority, and the results were certified to and published by the Pulaski County Judge on February 5, 1982.

However, on March 23, 1982, the Pulaski County Quorum Court adopted Ordinance 82-OR-12 which contained an article purporting to enact a 1% compensating use tax after April 1, 1982, and since that date both a 1% sales tax and a 1% use tax have been imposed and collected by the appellees.

This suit was filed October 5, 1982, and subsequently was certified as a class action.

The chancellor determined that the suit was an untimely election challenge filed more than thirty days after the certification of the election results. She further held that if the claim was not an election challenge, and was indeed an illegal exaction suit, then the mention of Act 26. of 1981 in the ballot title used in the special election was sufficient to notify the voters that not only a 1% sales tax but also a 1% use tax were to be voted on in the election.

There is a threshold issue which must be considered. Appellants filed a timely notice of appeal and properly ordered a transcript; however, appellants did not designate the entire record. Appellants did specifically list pleadings, motions, responses, all testimony, all stipulations, all exhibits and all orders filed in the trial court. The appellants did not file with their notice of appeal a statement of points on which they would rely on appeal.

The appellees filed a motion in the trial court to dismiss the appeal alleging that appellants had not complied with all of the provisions of Rule 3(g) of the Arkansas Rules of Appellate Procedure because they failed to file a statement of points on which they would rely on appeal. The chancellor granted appellees’ motion to dismiss. Thereafter, appellants filed a second notice of appeal both from the original judgment and the order dismissing the appeal; they also simultaneously filed a statement of points to be relied on, setting forth the same issues which had been fully argued and briefed before the trial court. Once again the appellees moved to dismiss, and the chancellor ordered dismissal, limiting appeal to whether the chancellor erred in dismissing the initial notice of appeal. Appellants moved this court for permission to file a full abstract and brief on all issues raised in the trial court, and such permission was granted.

It is obvious from the original designation of record on appeal that all substantive pleadings, motions and responses, all orders and the judgment of the court, all exhibits introduced into evidence, all stipulations of fact, and all of the testimony were designated. The only items not designated were discovery pleadings, discovery objections and briefs of the parties.

The purpose of Rule 3(g) is to prevent prejudice such as was found in Jones v. Adcock, 233 Ark. 247, 343 S.W.2d 779 (1961), which dealt with the statutory predecessor to Rule 3(g). In that case a full record had been designated originally, but was subsequently replaced by an abbreviated designation which was not served on the appellees. The points argued on appeal were affected by wndesignated portions of the record, and consequently the appellees were prejudiced by appellant’s failure to comply with the rule; appellees were therefore deprived of the opportunity to bring up additional matters in the record.

In the case at hand, there is no prejudice to appellees.

Accordingly, we do not limit the appeal to the question of whether the chancellor erred in dismissing the original notice of appeal; rather, we will address all the issues raised by appellant.

The appellants do not contest the validity of the 1 % sales tax. They do not challenge the election process or result as they relate to the sales tax. The appellants are not going behind the returns nor inquiring into the qualifications of the electors as in Parsons v. Mason, 223 Ark. 281, 265 S.W.2d 526 (1954) and Vance v. Johnson, 238 Ark. 1009, 386 S.W. 2d 240 (1965).

The appellants are questioning the power of the quorum court to adopt a 1% use tax in Article 2 of Ordinance 82-OR-12 passed on March 23,1982. Until that Ordinance was passed there had been no mention of a use tax in any public expression by the court officials. Before a tax can be enacted, a referendum is required by article 16, section 11, of the Constitution of the State of Arkansas. This Ordinance is an attempt to enact a tax without a referendum.

The citizens are entitled to be informed by plain language about what they are voting, and this court has long insisted on that standard. For example, in Arkansas - Missouri Power Corporation v. City of Rector, 214 Ark. 649, 217 S.W.2d 335 (1949), the city council passed an ordinance calling for an election in which the citizens would decide whether or not the city should issue and sell bonds in the amount of $65,000, “to build and construct an electric light plant.” What the ballot title did not tell the voters was that the cost of the plant would be more than twice that amount. The city defended on the basis that at mass meetings and discussions at council meetings it was explained that the plant could not be built for the amount stated in the ballot title. This court stated in Arkansas - Missouri Power Corporation, supra, at 654, that “The ballot title is the final word of information and warning to which the electors had the right to look as to just what authority they were asked to confer, . . .”

To suggest, as appellees do, that references to acts of the legislature in a ballot title were sufficient to inform voters they were not only authorizing a sales tax but also a use tax is like suggesting that mass meetings and city council discussions will sufficiently supply missing necessary information in a ballot title. The voters do not have ready access to the acts of the legislature, and we cannot presume they know what repealing effects a later act may have on a former act. Employing the phrase “sales tax” with no mention of “use tax” is at best misleading, even if a referenced act in the ballot title clearly and specifically requires a use tax to be imposed if a sales tax is imposed.

Reversed and remanded.

Special Justice Don H. Smith concurs.

Hays and Purtle, JJ., not participating.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Danny STEWART v. STATE of Arkansas
    CR 85-191
    711 S.W.2d 787
    Supreme Court of Arkansas
    Opinion delivered June 23, 1986

      Brad J. Beavers and W. Frank Morledge, P.A., for appellant.

      Steve Clark, Att’y Gen., by: Jerome T. Kearney, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The appellant, Danny Stewart, was charged with having murdered Edna Jolly on March 7, 1984. He was found guilty of capital murder and sentenced to life imprisonment without parole. His principal argument for reversal is that his confession to the police was the product of an illegal arrest and should have been suppressed. The State responds that the arrest was proper because the police acted in good faith within the Supreme Court’s ruling in United States v. Leon, 104 S. Ct. 3405 (1984). We cannot uphold the conduct of the police or of the municipal judge with respect to the arrest warrant and must reverse the judgment of conviction.

Mrs. Jolly’s murder in March was an unsolved crime for almost five months. On August 1 Linda Hancock reported to the Forrest City police that she was getting obscene phone calls. A tap placed on her telephone showed that another call received by Ms. Hancock later that day had been made from the house in which Danny was living with his parents. Ms. Hancock described the caller’s voice as that of a young black male. Officer Bill Dooley went about getting a warrant for Danny’s arrest. The officer filled in a printed form of Affidavit For Arrest Warrant, in which Linda Hancock was to swear that Danny Stewart had made an obscene phone call to her. Officer Dooley took the affidavit to Ms. Hancock’s home and obtained her signature. She did not swear to it. Instead, the officer took the signed form to the office of the municipal court clerk, where a deputy filled in and signed the jurat without having talked to Ms. Hancock.

Municipal Judge John D. Bridgforth had signed a pad of 50 or more blank arrest warrants and had authorized the clerk to issue warrants on her own after having read the supporting affidavit and made certain it had been signed. Judge Bridgforth testified that he never saw the affidavit in this instance and made no judicial determination of reasonable cause for the arrest of Danny Stewart. The clerk, however, filled in one of the presigned warrants, charging Danny Stewart with harassment by communication, and gave it to Officer Dooley. He turned it over to another officer, who arrested Stewart and brought him in for questioning. Stewart was given the usual Miranda warning. He was first questioned about the phone calls and then about the murder of Edna Jolly. Stewart signed a confession in which he told how he had gone to a house on Franklin Street and entered by breaking a large window, after having first broken a small window in the back door. He found “an old white lady” in the bedroom. When she began yelling he hit her more than once with the piece of wood he had used to break the windows. He carried her outside and left her in a ditch by a railroad track. The details he gave corresponded to what the police had found back in March. The confession was the cornerstone of the State’s case.

We have already decided to accept and adhere to the Leon relaxation of the exclusionary rule. Lincoln v. State, 285 Ark. 107, 685 S.W.2d 166 (1985). In the case at bar, however, the key element of good faith is lacking. Officer Dooley knew that Linda Hancock had not made her accusation under oath, an essential element of an affidavit. He could not have acted in good faith in obtaining the arrest warrant on the strength of that spurious affidavit.

The conduct of Judge Bridgforth was inexcusable. The Leon opinion states that the good faith exception will not apply in cases “where the issuing magistrate wholly abandoned his judicial role.” Leon, p. 3422. In Arkansas the magistrate’s judicial role is clearly stated in Criminal Procedure Rule 7.1(b):

(b) In addition, a judicial officer may issue a warrant for the arrest of a person if, from affidavit, recorded testimony, or other information, it appears there is reasonable cause to believe an offense has been committed and the person committed it.

Judge Bridgforth testified that he had authorized the court clerk to issue warrants of arrest for misdemeanors. This warrant was for a misdemeanor, the making of an obscene call. But Rule 7.2(a)(iii) requires that every arrest warrant “be signed by the issuing official with the title of his office.” The warrant now in question recites that there are reasonable grounds for believing that Danny Stewart has committed the offense of harassment by communication. Any law enforcement officer is ordered by the warrant to arrest Stewart and bring him before the municipal court of Forrest City. Those statements appeared above Judge Bridgforth’s signature. He signed the warrant; the clerk did not. Judge Bridgforth was the “issuing official,” not the clerk. Had the officers known nothing about the warrant when they received it, perhaps they might have relied on it in good faith. But here Officer Dooley took the warrant to the clerk’s office, saw the deputy complete the jurat, and certainly knew that Judge Bridgforth had taken no part in the procedure, which Dooley said took only 4 or 5 minutes in the clerk’s office.

In view of the police officer’s knowledge of the illegal procedure and of the issuing magistrate’s abdication of his responsibility, the arrest cannot be upheld under the ruling in the Leon case. The arrest was followed immediately by Stewart’s interrogation and confession. The trial court should have suppressed the confession under the poisonous tree principle.

The appellant’s next four points all relate to the confession or to the arrest and need not be discussed, for they will not arise upon a retrial.

The fifth point relates to a fingerprint. In March the police picked up pieces of broken glass at the Jolly home and sent them to the State Crime Laboratory. A latent fingerprint was found on one piece of glass. When Danny Stewart was arrested, his fingerprints were taken. An expert compared them with the latent print and testified that the latent print had been made by Stewart’s righthand ring finger.

The appellant now renews the arguments made at trial, that the chain of custody for the broken glass was not complete and that there was no proper foundation for the expert comparison. We need not pass upon these objections, for the State’s proof may be more detailed at a second trial. We do note that neither at the trial nor in appellant’s brief has it been argued that the illegality of the arrest made the fingerprint comparison inadmissible. It. is not our practice to express an opinion about points not presented.

A final argument is that certain photographs of Ms. Jolly’s body should have been excluded as being inflammatory. The trial judge did not abuse his discretion in allowing the pictures to be introduced in evidence.

Reversed and remanded.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I agree with the majority opinion with the single exception of the failure to rule on the suppression of the fingerprints obtained as a result of the illegal arrest. In keeping with the time-honored doctrine of exclusion of fruit of the poisonous tree, I would at this time inform the trial court and the state that the illegally obtained fingerprints may not be used if a retrial is conducted in this case. Wong Sun v. United States, 371 U.S. 471 (1963).


author: Darrell HickmAn, Justice.

text:
    Shirley BROWN and Fred BROWN v. Joann S. NOBLES, et al.
    86-40
    711 S.W.2d 786
    Supreme Court of Arkansas
    Opinion delivered June 23, 1986
    Appellants, pro se.

      Wright, Lindsey & Jennings, and Laser, Sharp & Mayes, by: Sam Laser, for appellees.
   Darrell HickmAn, Justice.

This appeal must be affirmed because the appellants have failed to abstract any testimony or evidence from the record. Rule 9, Rules of the Arkansas Supreme Court and Court of Appeals.

Affirmed.


text:
    Farris HOLLIMAN v. MFA MUTUAL INSURANCE COMPANY, et al.
    85-308
    711 S.W.2d 159
    Supreme Court of Arkansas
    Opinion delivered June 23, 1986

      Guy Jones, Jr., P.A., for appellant.

      Matthews & Sanders, by: Gail O. Matthews and Marci L. Talbot, for appellees.
   Darrell Hickman, Justice.

This suit involves the interpretation of a homeowner’s insurance policy issued to Farris Holliman by MFA Mutual Insurance Company. Holliman sued MFA alleging coverage for an accident on his premises which occurred on August 17, 1979. Holliman’s brother, Garry, was pouring gasoline in the carburetor of a 1968 Ford automobile as Farris turned on the ignition. The gasoline ignited, burning Garry. Garry sued Holliman alleging negligence. MFA had been notified of the claim against Holliman by Garry Holliman’s lawyer. After an investigation, MFA declined coverage because maintenance of the vehicle was the cause of the accident. A default judgment of $25,000 was entered against Holliman on December 28, 1981. Holliman then filed this suit against MFA, using the same lawyer retained by his brother, claiming the homeowner’s policy covered the accident because the vehicle was in dead storage, and, therefore, not excluded under the policy. The trial court denied a directed verdict motion by MFA and the jury returned a verdict for Holliman. The trial court granted MFA’s motion for judgment notwithstanding the verdict, finding that it was a question of law whether the vehicle was in dead storage or whether it was merely broken down and awaiting repairs. The trial court held the car was not in dead storage; therefore, the accident was not covered by the policy. We affirm the trial court.

The facts in this case are essentially undisputed. Farris Holliman bought a used vehicle in March or April of 1979. He owned three vehicles and none were insured. Both he and his wife drove this particular vehicle several times on the highway to the gas station, but the vehicle was never registered or licensed. About a month before the accident, he parked the vehicle on his premises approximately 100 feet from his house because it would not start. A few days before the accident Holliman charged the battery, the tires were inflated, the radiator had water in it, and there was probably gas in the tank. The vehicle was essentially ready to drive, except it would not start. In attempting to get the car started, the fire occurred and Garry was burned.

Holliman’s homeowner’s policy provides:

This policy does not apply:

1. Under Coverage E — Personal Liability and Coverage F — Medical Payments to others:
a. To bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading:
* * * *
(2) Any motor vehicle owned or operated by, or rented or loaned to any insured; but this subdivision (2) does not apply to bodily injury or property damage occurring on the resident premises if the motor vehicle is not subject to motor vehicle registration because it is used exclusively on the residence premises or kept in dead storage on the residence premises.

Holliman argues that while a homeowner’s policy excludes personal injuries resulting from the use and maintenance of an automobile subject to registration, this vehicle was not being maintained but was in dead storage, and, therefore, the exclusion does not apply.

Two other states, Alabama and Florida, under strikingly similar facts, have held as a matter of law that a vehicle undergoing maintenance is not in “dead storage”; thus, personal injuries sustained while maintaining the vehicle are not covered by the homeowner’s policy. In Broadway v. Great American Ins. Co., 465 So. 2d 1124 (Ala. 1985), the court considered an almost identical homeowner’s policy which read:

1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to bodily injury or property damage: * * * *
e. Arising out of the ownership, maintenance, use, loading or unloading of:
(1) an aircraft:
(2) a motor vehicle owned or operated by or rented or loaned to any insured . . .
[A] motorized land vehicle designed for travel on public roads or subject to motor vehicle registration. A motorized land vehicle in dead storage on an insured location is not a motor vehicle.

The insured purchased a used vehicle for his son. The car broke down and was towed to the insured’s residence where it was moved into a shed behind the house. It was determined the vehicle needed extensive repairs including a complete engine overhaul. The vehicle remained parked in the shed for approximately one month. The engine was removed to be rebuilt. Two months after the vehicle was parked in the shed, gasoline was poured into the carburetor to start it, a fire occurred and injured a bystander.

The Alabama court, relying on two Florida decisions, held that the vehicle was being maintained and therefore was not in dead storage. The court said:

As this court perceives the terms ‘dead storage’ and ‘maintenance of a motor vehicle,’ they are mutually exclusive. In other words, a motor vehicle in dead storage is one which is not undergoing maintenance, while a vehicle which is undergoing maintenance cannot be in dead storage. Regardless of the status of the Duster during the time it remained in Ryals’s garage untouched, it was undergoing maintenance at the time Broadway’s injuries occurred; consequently, it was not in dead storage.

The court observed that “maintenance” has been held to be an unambiguous term and negligent use of a carburetor would come within the meaning of this term. The court upheld a grant of summary judgment in favor of the insurance company.

The cases cited by the Alabama court, Lawson v. Allstate Ins. Co., 456 So.2d 1235 (Fla. App. 3 Dist. 1984), and Volkswagen Ins. Co. v. Dung Ba Nguyen, 405 So.2d 190 (Fla. App. 3 Dist. 1981), are generally in accord with this decision. In Volkswagen a man was injured pouring gasoline in a carburetor and coverage was sought under a homeowner’s policy. The court found as a matter of law that the vehicle was being “maintained” when the accident occurred. The court said:

This policy provides coverage for personal liability to third parties. The policy contains an exclusion which specifically precludes coverage for the maintenance, operation or use of a motor vehicle . . . The attempt to start the truck by pouring gas into the carburetor, which resulted in the ignition of the gas, involved the ‘maintenance’ of the vehicle within the terms of the exclusion.

We agree with the Alabama court that when a vehicle is being maintained, as it was in this case, it is not in dead storage. The facts in this case present no substantial evidence that this vehicle was in dead storage within the meaning of the policy. When the language of the policy is clear and unambiguous, the court should decide the construction as a matter of law. National Life and Accident Ins. Co. v. Abbott, 248 Ark. 1115, 455 S.W.2d 120 (1970). Since the policy provision that excluded coverage for injuries arising from maintenance was unambiguous, the trial court could find as a matter of law that the vehicle was not in dead storage and enter accordingly the judgment notwithstanding the verdict.

Holliman also filed a claim for the tort of bad faith alleging MFA failed to defend him in the suit filed by his brother. The trial court refused Holliman’s submitted jury instructions concerning these allegations. A trial court can properly refuse to give a jury instruction unsupported by the evidence. Whitt v. State, 281 Ark. 466, 664 S.W.2d 876 (1984). There is no evidence that MFA was guilty of any affirmative act of bad faith that would trigger this claim or support the proffered jury instructions. Aetna Casualty and Surety Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 463 (1984).

Affirmed.


text:
    David HIGGINS and John JUSTIS, Jr. v. Winston HINES
    86-71
    711 S.W.2d 783
    Supreme Court of Arkansas
    Opinion delivered June 23, 1986

      Murphy & Carlisle, by: Marshall N. Carlisle, for appellants.

      Gary L. Carson, P.A., by: Gary L. Carson, for appellee.
   John I. Purtle, Justice.

In May 1983, the appellants and appellee entered into an oral agreement for the purpose of establishing a nightclub, the Zanzibar, in Fayetteville, Arkansas. Pursuant to the agreement the parties formed a corporation named D.J.W., Inc. and each of the three parties were issued ten (10) shares of stock in the corporation. This agreement also provided that the appellee would be the manager of the bar and when the club opened its doors to the public in October 1983, the appellee was the manager.

In order to start the Zanzibar, the appellants contributed bar equipment and supplies from an existing bar which was closing and the appellee contributed $15,000.00 and executed a note for an additional $10,000.00. The note was to be paid to the corporation within three (3) years. On October 4, 1983, the appellee contributed an additional $2,500.00 to the corporation. The remaining $7,000.00 due on the note was paid on January 20, 1984. That same evening the appellants terminated the appellee as the manager of the club. At trial one of the appellants stated that the reason for termination was theft of corporate funds and the other alleged mismanagement. Since his termination the appellee has not been furnished any information about the operation of the corporation nor has he been allowed to participate in any functions of the club or the corporation.

On August 14, 1984, the appellee filed a complaint against the appellants alleging that they had perpetrated a fraud upon him by falsely representing that he would be the manager of the new club. He sought recovery of the $27,500.00 that he had invested in the corporation, compensatory damages, liquidation of the corporation, and punitive damages. Upon trial a jury awarded appellee Thirty Four Thousand dollars ($34,000.00).

On appeal appellants argue that the trial court erred in failing to direct a verdict for the defendants at the close of the plaintiffs case and in failing to grant the motion for a directed verdict at the close of the trial.

The first point gives us no concern. By going forward with proof after the motion for a directed verdict was denied, any error in denying the motion was waived. Kansas City Southern Industries, Inc. v. Stevenson, 266 Ark. 544, 587 S.W.2d 12 (1979); Granite Mountain Rest Home v. Schwarz, 236 Ark. 46, 364 S.W.2d 306 (1963); Grooms v. Neff Harness Co., 79 Ark. 401, 96 S.W. 135 (1906). Also, in Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981), we held that adoption of ARCP, Rule 50(a) did not change the settled rule that by going forward with proof waives any error in the trial court’s failure to direct a verdict at the close of the plaintiffs case.

The second point argued is that the court erred in failing to grant the motion for a directed verdict at the close of all the evidence. The standard of review on this issue is whether there was any substantial evidence which would support a verdict. In determining the propriety of a failure to direct a verdict for the defendant, we view the evidence in the light most favorable to the plaintiff. If there is any evidence legally sufficient to warrant a verdict, it is proper for the trial court to deny the motion for a directed verdict. Downey v. Jones Mechanical Contractor, 273 Ark. 207, 619 S.W.2d 614 (1981); Barrentine v. The Henry Wrape Co., 120 Ark. 206, 179 S.W. 328 (1915).

There are five elements which constitute the tort of deceit according to Prosser, Law of Torts, p. 685 (4th Ed. 1971). They are as follows:

1. A false representation made by defendant. In the ordinary case this representation must be one of fact.
2. Knowledge or belief on the part of the defendant that the representation is false — or, what is regarded as equivalent, that he has not a sufficient basis of information to make it.
3. An intention to induce the plaintiff to act or refrain from action in reliance upon the misrepresentation.
4. Justifiable reliances upon the representation on the part of the plaintiff in taking action or refraining from it.
5. Damages to plaintiff, resulting from reliance.

The appellee submitted the following evidence: (1) that he was promised he would be an equal partner in the corporation and manager of the club; (2) that he would have three (3) years in which to pay the $10,000.00 note; (3) that except for $2,500.00, he contributed all the cash that was put into the corporation; (4) that he was never treated as an equal partner in the corporation; (5) that he was “talked into” paying the $7,000.00 to the corporation on January 20,1984; (6) that he was terminated later on the same date; (7) that he relied upon the false representations made by the appellants that he would remain manager; (8) that he suffered damages as a result of his detrimental reliance upon said representations and (9) that the appellee devoted several months work to the club without receiving any compensation for his time and investment.

We find that there was substantial evidence to support the jury’s verdict and that the trial court did not err in denying the appellants’ motion for a directed verdict at the conclusion of all the evidence.

Affirmed.


text:
    VALLEY NATIONAL BANK OF ARIZONA v. Warren STROUD and Carol STROUD, and Bobby EPPERSON, Commissioner
    86-47
    711 S.W.2d 785
    Supreme Court of Arkansas
    Opinion delivered June 23, 1986

      Peel & Eddy, by: David L. Eddy, for appellant.

      Streett & Kennedy, by: Alex G. Streett, for appellee.
   John I. Purtle, Justice.

The chancellor entered a decree of divorce in which certain property of the parties was ordered sold at public auction. The court appointed the chancery clerk commissioner for the purpose of conducting the sale. The clerk was awarded a fee for his services in the amount of $600.00. The clerk accepted the husband’s bid at the first sale; however, the husband was unable to consummate the sale and the property was auctioned off at a second sale for the sum of $52,000.

The Strouds owed money on a promissory note and mortgage on their home place. They defaulted and the mortgage holder intervened to foreclose the mortgage. The parties to the divorce owed the appellant on an open line of credit. The appellant was allowed to intervene in the divorce proceeding and obtained a summary judgment against the parties to the divorce in the amount of $29,809.03.

During the divorce proceeding the chancery clerk held funds belonging to the parties to the divorce in the amount of $29,567.19. Appellant garnished these funds, which were insufficient to pay appellant’s judgment. The clerk’s commission in the amount of $600 was paid from the funds held in escrow. The appellants argue on appeal that the fee allowed for the services in connection with the sale were excessive.

The only issue on appeal is whether the court erred in allowing the commissioner’s fee in an amount in excess of the fee established in Ark. Stat. Ann. § 12-1712 (Repl. 1979). This statute establishes a fee schedule for commissioners at judicial sales. A sale for $35,000 or more calls for a commission of one-tenth of one per cent. Based on the sale of the real property in this case the commissioner would be entitled to a fee of $52.00.

The other statute relevant to this dispute is Ark. Stat. Ann. § 22-449 (Supp. 1985). The pertinent part of the last cited statute reads as follows: “Any master or commissioner appointed shall receive for such services such compensation as may be fixed by the court, unless the amount of compensation shall be now or hereafter fixed by law [emphasis added].” In the present case we have a general and a special statute involved. In statutory construction where specific expressions conflict with general expressions, the rule is to give greater effect to the specific expression. Thomas v. Easley, 277 Ark. 222, 640 S.W.2d 797 (1982). It is not necessary to resort to this rule of construction in the present case because the general statute (§ 22-449) expressly exempts cases where the compensation may now or hereafter be fixed by law. The specific statute (§ 12-1712) was in effect at the time of the enactment of the general statute.

We hold that the real property was sold only one time and that was for the amount of $52,000. The fee fixed by law for such sale is $52.00. A sale is not completed until it is confirmed by the court. The first sale was not confirmed.

Reversed and remanded with instructions to proceed in a manner not inconsistent with this opinion.


author: Robert H. Dudley, Justice.

text:
    George J. CHRISTY and CHRISTY COMPANY OF ARKANSAS, INC. v. FIRST NATIONAL BANK OF COMMERCE, NEW ORLEANS, LOUISIANA
    85-316
    711 S.W.2d 779
    Supreme Court of Arkansas,
    Opinion delivered June 23, 1986
    [Rehearing denied September 15, 1986.]

      Friday, Eldredge & Clark, by: William A. Waddell, Jr., for appellant.

      Shaver, Shaver & Smith, by: Tom B. Smith, for appellee.
   Robert H. Dudley, Justice.

Appellee, First National Bank of Commerce of New Orleans, Louisiana, filed a petition to register a foreign judgment against appellants, Christy Company of Arkansas, Inc. and George J. Christy. The trial court entered an order of registration. We affirm.

A family named Blondín owned a 33.35 acre tract of land in Ruston, Louisiana. Appellant Christy Company leased the tract from the Blondins in order to build a shopping center upon it. The appellee bank agreed to make the interim loan for the construction of the shopping center. As evidence of the indebtedness to be incurred, the Christy Company executed a $4,600,000.00 promissory note to the appellee bank. The note was secured by a collateral mortgage note, also for the principal sum of $4,600,000.00. The collateral mortgage note was secured by a mortgage, executed by the Christy Company and the Blondins, by which the Christy Company mortgaged its leasehold interest and the Blondins mortgaged their ownership interest. The Blondins signed neither the collateral mortgage note nor the negotiable promissory note. Under the applicable Louisiana law, their liability was limited to their land which was mortgaged. Appellant George Christy endorsed both the negotiable promissory note and the collateral mortgage note.

The Title Insurance Company of Minnesota insured the bank’s mortgage interest up to the $4,600,000.00 face amount of the policy.

After the bank had advanced $989,559.49 of the construction money, the Christy Company defaulted. The bank then filed suit to foreclose on the Blondin’s property. The Louisiana trial court held the mortgage was unenforceable. The bank next filed suit against the Christy Company, George Christy, and the Blondins. The claim against the Blondins was again rejected, but the bank was awarded a judgment against the Christy Company and George Christy in the amount of $989,559.49, plus interest, attorney’s fees and costs.

The bank then filed a malpractice suit for $989,559.49 against its law firm. Named in that suit were the law firm’s malpractice carriers, St. Paul Fire and Marine Insurance Company and the United States Fire Insurance Company.

The bank filed another suit for $989,559.49, this one against its title insurer, Title Insurance Company of Minnesota, alleging that the insurer was liable as a result of the failure of the mortgage.

The law firm and the three insurance carriers later settled the bank’s suits against them for $250,000.00. Appellants, Christy Company and George Christy, contend that the settlement also dismissed them under Louisiana law, and therefore, the judgment, having been discharged, is not subject to registration in Arkansas. See Ark. Stat. Ann. § 29-815 (Repl. 1979).

Appellants base their discharge argument on the Louisiana Civil Code, prior to its amendment and reenactment, which provided:

Art. 2203. Remission as to one c’odebtor in solido
Art. 2203. The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.
In the latter case, he cannot claim the debt without making a deduction of the part of him to whom he has made the remission.

“Remission” is defined in Black’s Law Dictionary (Rev. 4th ed.) as: “In civil law. A release of a debt. It is conventional, when it is expressly granted to the debtor by a creditor having a capacity to alienate. ...” ,

La. Civ. Code Ann. art. 2091 explains an obligation in solido-.

Art. 2091. Obligations in solido on the part of debtors
Art. 2091. There is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor.

La. Civ. Code Ann. art. 2092 provides further explanation:

Art. 2092. Debtors in solido with different terms or conditions
Art. 2092. The obligation may be in solido, although one of the debtors be obliged differently from the other to the payment of one and the same thing; for instance, if the one be but conditionally bound, whilst the engagement of the other is pure and simple, or if the one is allowed a term which is not granted to the other.

Finally, La. Civ. Code Ann. art. 2093 provides:

Art. 2093. Presumption against obligations in solido; exceptions
Art. 2093. An obligation in solido is not presumed; it must be expressly stipulated.
This rule ceases to prevail only in cases where an obligation in solido takes place of right by virtue of some provisions of the law.

For appellants to prevail on their argument they must show that their obligation is in solido with the obligation of the law firm and the insurance companies. In other words, appellants must establish that they are all obliged to the payment of the same thing even though they may be obliged differently. As provided by La. Civ. Code Ann. art. 2093, there is a presumption against obligations in solido, and they must be expressly stipulated or arise by some provision of the law.

There was no express stipulation of an obligation in solido among these parties. Therefore, in order to find an obligation in solido in this case, it must arise by virtue of some provision of the law.

An example of the concept of solidary obligors, something more broad than joint and several liability, is found in Hoefly v. Government Employees Insurance Co., 418 So.2d 575 (La. 1982), where the Supreme Court of Louisiana wrote:

The tortfeasor and the uninsured motorist carrier are obliged to the same thing. A tortfeasor is obliged to repair the damage that he has wrongfully caused to the innocent automobile accident victim. La.C.C. art. 2315. Subject to conditions not granted the tortfeasor, the uninsured motorist carrier is independently obliged to repair the same damage. By effect of the uninsured motorist statute, La.R.S. 22:1406(D)(l)(a), and its insuring agreement, the plaintiffs’ uninsured motorist carrier is required to pay, subject to statutory and policy conditions, amounts which they are entitled under other provisions of law to recover as damages from owners or operators of uninsured or under-insured motor vehicles. By effect of law, and the terms of the insuring agreement, therefore, both the uninsured motorist carrier and the tortfeasor are obliged to the same thing. The Work of the Louisiana Appellate Courts, 1974-1975 Term — Obligations, 36 La.L.Rev. 375,379-380 at n. 23; The Work of the Louisiana Appellate Courts for the 1967-1968 Term — Insurance, 29 La.L.Rev. 253, 257 (1969); The Work of the Louisiana Appellate Courts for the 1966-1967 Term — Insurance, 28 La.L.Rev. 372, 373-374 (1968).

Appellants contend that La. Civ. Code Ann. articles 2091 and 2092 provide ample authority for finding that the appellants and the insurance companies were debtors in solido. In other words, they contend that meeting the requirements of those two articles alone is sufficient to establish solidary obligations, and that article 2093 does not require them to show that the obligation arises by virtue of some provision of the law apart from articles 2091 and 2092. We need not reach that argument because here the appellants have not established that the parties are obligated to the payment of the same thing under articles 2091 and 2092. The appellants are liable for all money advanced to them, almost a million dollars, plus interest, attorney’s fees and costs. Under Louisiana law it is an in personam obligation. St. Paul Fire and Marine Insurance Company, United States Fire Insurance Company, Title Insurance Company of Minnesota, and the Louisiana law firm are not liable for the full amount of money advanced to appellants; instead, they are liable only for the amount of damages incurred by the bank for the failure to perfect a mortgage upon the Blondins’ property. Under Louisiana law it is an in rem obligation. The nature of the two obligations is different. They are not the same thing.

Appellants contend that the obligations arise from the same fact situation and that the bank sued the insurance companies and the law firm for the same amount of money; therefore, it is the same obligation. The argument is without merit. Simply because the bank sued these parties and prayed for the same amount of money is not enough to establish in solido obligations. We cannot say that the obligations of the parties to the settlement are in solido with the obligations of the appellants. The release did not discharge appellants’ debt to the bank. Therefore, the judgment is not satisfied and is subject to registration.

Appellants next argue that, after registration of the judgment, they are entitled to a credit for the amount of the settlement, less costs and expenses. The argument is meritorious because in response to an interrogatory in this suit, appellee stated that it “would stipulate that Defendants [appellants] are entitled to a credit of $250,000.00, less the. cost and expenses incurred in obtaining same, upon the judgment sought to be registered. . . .” That response was admitted into evidence with no objection from appellee.

Affirmed as modified.