author: George Rose Smith, Justice.

text:
    STATEWIDE HEALTH COORDINATING COUNCIL et al v. GENERAL HOSPITALS OF HUMANA, INC. et al
    83-83
    660 S.W.2d 906
    Supreme Court of Arkansas
    Opinion delivered October 24, 1983
    [Rehearing denied December 12, 1983.]

      Barrett, Wheatley, Smith ir Deacon, by: J. C. Deacon, for appellant Statewide Health Coordinating Council.

      Gill, Skokos, Simpson, Buford ir Owen, P.A., by: Harold H. Simpson, II, for appellants Baptist Medical System and Arkansas Blue Cross 8c Blue Shield, Inc.

      House, Jewell, Dillon, Dover ir Dixon, by: Charles R. Nestrud, for appellant St. Vincent Infirmary.

      Smith, Jernigan ir Smith, by: George O. Jernigan and Robert D. Smith, III; and Harrison ir Brown, P.A., by: Robert L. Brown, for appellee General Hospitals of Humana, Inc.

      George A. Harper, Special Asst. Atty. Gen., for appellees Arkansas Health Planning 8c Development Agency, Ivan H. Smith, and Division of Social Services, Department of Human Services.

      Purtle, J., would grant rehearing.

   George Rose Smith, Justice.

The principal appellee, General Hospitals of Humana, which we will refer to as Humana, is a subsidiary corporation of a parent company that owns about 90 hospitals, nearly all of them in the United States. In 1982 Humana applied to the Arkansas Health Planning & Development Agency, which we will refer to as the State Agency, for a certificate of need that would authorize Humana to construct and operate a 150-bed community hospital at Sherwood, in Pulaski County. The application was opposed by the Baptist Medical System, St. Vincent Infirmary, and Arkansas Blue Cross & Blue Shield. After a hearing the director of the State Agency, acting for the Agency, granted the application.

The three protestants asked for a review by an independent agency, as permitted by the State Agency’s rules. The Governor appointed the Arkansas Social Services as the independent reviewing agency. A Social Services attorney conducted a hearing and upheld the award of a certificate of need. That decision was affirmed by the circuit court. The protestants present several arguments for reversal, but we need consider only one: The State Agency was not authorized to grant a certificate of need that was inconsistent with the State Health Plan. On the record that argument must be sustained, which disposes of the case.

First, a preliminary procedural matter. Humana has filed a motion to dismiss the appeal as moot, asserting that it was compelled by the State Agency’s Rule 16 to enter into a construction contract (and it actually began construction) within one year after the certificate of need was awarded on August 5, 1982, else the certificate would have expired. Without implying that Humana’s motion to dismiss is otherwise well taken, we note two flaws in its argument. First, Rule 16 provides that for good cause the State Agency may extend the time up to an additional six months. Humana apparently had good cause to seek an extension, but it did not do so. Second, Rule 16 also states that evidence of an obligation to make the capital expenditure must be received by the State Agency within one year after its approval of the project or the approval will expire. An obligation, under Rule 16, is deemed to have been incurred within the year if the applicant enters into an enforceable contract for the construction, acquisition, lease, or financing of a capital asset. Hence the execution of a construction contract was not the only choice. Apparently the Humana company fulfilled the financing alternative, as Humana produced testimony on November 9, 1982, that bonds for the project had been issued. We conclude that Humana was not threatened with an immediate expiration of its certificate of need.

Turning to the merits, we must emphasize at the outset that there is in progress a national effort to limit the construction of new hospitals — an effort initiated by Congress, carried forward by regulations issued by the Secretary of Health and Human Services, and supported by legislation enacted by the states, which are expected to participate in the program and receive federal funds for health care. Among the statutes and regulations pertinent to this case are 42 USCA §§ 300k to 300n-6 (1982); 42 C.F.R. §§ 121.1 to 124.607 (1982); and Ark. Stat. Ann. §§ 82-2301 to -2314 (Repl. 1976 and Supp. 1983).

The policy of restricting hospital construction stems from Congress’s belief that competition among hospitals, unlike competition in the market place, does not reduce the cost of in-patient hospital services to the consuming public. 42 USCA § 300k-2 (b) (1). To the contrary, the testimony in the case at bar shows that such competition actually increases hospital charges. Fixed hospital costs are so great that an empty bed costs about half as much to maintain as an occupied bed. Hospitals compete not for patients but for doctors, who usually select the patient’s hospital. Hospitals vie with one another in acquiring expensive equipment, with unnecessary and costly duplication of facilities. Hospital charges are apt to be paid without question by public and private health insurers. The hard fact is, as one witness stated bluntly: “The cost of hospital care is just outrageous to the consumer.”

Congress has attacked the problem by attempting to limit the number of licensed hospital beds. The federal regulation, 42 C.F.R. 121.201 (a), provides: “Standard. There should be less than four non-Federal, short-stay hospital beds for each 1,000 persons in a health service area except under extraordinary circumstances.” (Our italics.) The ensuing discussion in subsection (b) then states: “Health Maintenance Organizations and similar groups have shown that high quality health care can be provided with less than 3 beds per 1,000 population. Thus, 4 beds per 1,000 population is a ceiling, not an ideal situation. ’ ’ The Arkansas State Health Plan contains the same less-than-4-beds-per-1,000 limitation that was written into the federal regulations. Ark. State Health Plan, pp. 184-185.

The federal law, in its endeavor to control the proliferation of hospital beds throughout the nation, contemplates that each state will be divided by its governor, subject to revision by the Secretary, into health service areas so that the distribution of health care units can be conformed to local conditions. Arkansas has been divided into four such areas. This case arose within the Central Arkansas area, composed of Faulkner, Lonoke, Monroe, Prairie, Pulaski, and Saline Counties. This area, like other health service areas, has its own Health Systems Agency and Health Systems Plan. There is also a detailed State Health Plan, which must be and was adopted by the Statewide Health Coordinating Council, must be revised by that Council at least every three years, and is to be administered by the State Agency. 42 USCA § 300m-2 (a) (2); 42 USCA § 300m-3 (c) (2) (A).

Various different figures were given in the testimony about the number of hospital beds in the Central Arkansas area, because the witnesses did not count the beds in the same way. There is no question, however, but that the area, like most of the nation, is overbedded in that its licensed hospital beds already exceed the federal and state maximum of 4 beds per 1,000 persons. Humana did submit figures purporting to show that in 1986 there would be no overage even with its 150 added beds, but when this isolated testimony is weighed along with the other proof it cannot be considered substantial evidence. See Ark. Savings & Loan Assn. Bd. v. Central Ark. S. & L. Assn., 260 Ark. 58, 538 S.W.2d 505 (1976). Moreover, both the State Agency and the reviewing independent agency found that Humana’s application is inconsistent with the need determinations of the Arkansas Health Systems Plan.

The State Health Plan is not inflexible. Both the federal and state law permit the maximum bed limit to be exceeded locally to meet exceptional conditions, which are specified as being (1) an unusually high proportion of persons over 65 years old, (2) seasonal population fluctuations, (3) rural areas in which, for example, a majority of the residents would otherwise be more than 30 minutes travel time from a hospital, (4) urban areas having a large number of beds compensated by fewer beds in the same metropolitan area, and (5) areas having referral hospitals attracting nonresident patients. 42 C.F.R. 121.201 (a); State Health Plan, pp. 184-185. There has been no finding that any such exceptional condition exists. The independent reviewing agency referred broadly to adjustments for age and rural area, but there is no proof with respect to aged residents in the area, and the area Health Systems Plan states that over 90% of the population in the area lives within 30 minutes of an existing hospital. Specifically, both the Memorial Hospital in North Little Rock and the Rebsamen Hospital in Jacksonville are within the area that Humana expects to serve.

Thus it is established without substantial dispute that Humana’s application for a 150-bed hospital in an area already overbedded is contrary to the Central Arkansas Health Systems Plan and to the State Health Plan. On this critical point the State Agency’s own Rule 4 (d) requires that the State Health Plan be adhered to:

Each decision of the State Agency (or the appropriate administrative or judicial review body) to issue a certificate of need must be consistent with the State Health Plan, except in emergency circumstances that pose an immiment threat to public health.

Despite this rule adopted by the State Agency itself, both that agency and the independent agency made what is denominated as a “Finding of Fact,” though it contains only what is really a conclusion of law:

The application, while inconsistent with the need determinations of the Health Systems Plan, is consistent with the goals, objectives, and need determinations of the State Health Plan.

There is no substantial evidence to support that finding. The principal goals and objectives of the entire federal and state program are to reduce the cost of hospital care by prohibiting the construction of new hospitals that would exceed the limit of 4 beds per 1,000 population. The application proposes that the limit be exceeded. It is a contradiction to declare the application consistent with the State Health Plan when in fact it is flatly and unmistakably contrary to that plan.

Counsel for Humana do not and could not seriously argue that the proof supports the State Agency’s determination. Instead, it is contended that the federal and state laws are guidelines which the director of the State Agency is free to disregard if he chooses to do so. If that were true, the entire federal and state effort to confine the number of hospital beds to the target limitation would be futile, for every agency director would be free to ignore the limitation whenever he saw fit to do so. The short answer is that the laws and regulations specify the exceptional circumstances under which the fixed bed limit may be exceeded. No such exception has been demonstrated in this instance.

Reversed.

Hays, J., not participating.


source: Caselaw Access Project

author: Frank Holt, Justice. Richard B. Adkisson, Chief Justice,

license: Public Domain

text:
    Johnnie STOCKER, Jr. v. STATE of Arkansas
    CR 83-64
    658 S.W.2d 879
    Supreme Court of Arkansas
    Opinion delivered October 24, 1983

      Darrell F. Brown ir Associates, by: Richard E. Holiman, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The issue here is whether the trial court correctly denied appellant’s pro se petition for post-conviction relief without an evidentiary hearing.

Appellant was charged with burglary. The information was amended charging him as a habitual offender with four or more prior felonies pursuant to Ark. Stat. Ann. §41-1001 (2) (Repl. 1977). Burglary, a class B felony, at that time provided for a range of punishment of three to twenty years. §41-901. However, when a defendan t has four or more prior convictions, the range of punishment is twenty to forty years. § 41-1001 (2) (b). On the advice of appellant’s retained counsel, he entered a plea of guilty to burglary pursuant to a negotiated plea agreement and received a sentence of twenty years. Subsquently, the appellant filed a pro se petition for postconviction relief (A.R.Cr.P. Rule 37) alleging ineffective assistance of counsel. Appellant claimed his attorney failed to properly investigate the allegations that appellant was previously convicted of four or more felonies and incorrectly advised him that his maximum liability was fifty to sixty years, thereby coercing him into accepting the negotiated plea. This appeal is taken, through present appointed counsel, from the trial court’s failure to hold an evidentiary hearing.

The trial court is authorized to deny postconviction relief without an evidentiary hearing pursuant to Rule 37.3 (a), which provides:

If the motion and the files and the records of the case conclusively show that the prisoner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files or records that are relied upon to sustain the court’s findings. (Italics supplied.)

It appears there is considerable uncertainty about the charges appellant faced. The original information charged appellant with burglary. It was amended by alleging he was a habitual offender, having four previous convictions. However, the written plea agreement, signed by the appellant, erroneously stated that he was also charged in this case with theft of property. It is undisputed that appellant’s twenty year sentence for burglary was based on a negotiated plea. Admittedly, in return for his guilty plea to the charge of burglary, he was not sentenced as a habitual offender. However, it appears fair to say that plea negotiations were conducted on the basis of appellant’s being a habitual offender since he received a twenty year sentence, which is the minimum sentence with four or more previous convictions. It certainly appears illogical that he would negotiate a guilty plea for the maximum sentence of twenty years for the burglary charge alone.

When accepting the plea, the trial court asked the appellant how many prior convictions he had to which appellant replied, “One.” The record does not reflect that the trial court nor appellant’s attorney ever advised him as to the minimum or maximum sentence on an unenhanced burglary charge; namely, three to twenty years. See A.R.Cr.P. Rule 24.4. In Blackmon v. State, 268 Ark. 316, 595 S.W.2d 689 (1980), we said:

An evidentiary hearing in the trial court on an allegation of ineffective assistance of counsel ‘better equip[s] us on review to examine in detail the sufficiency of the representation below.’

To the same effect is Cusick v. State, 259 Ark. 720, 536 S.W.2d 119 (1976). Furthermore, any deficiencies in the plea proceedings can be remedied at a postconviction hearing. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982).

In the circumstances, we hold that the record before us does not “conclusively” show that appellant was not entitled to an evidentiary hearing.

Reversed and remanded.

Adkisson, C.J., and Hickman and Hays, JJ., dissent.

Richard B. Adkisson, Chief Justice,

dissenting. I cannot agree with the majority that the petitioner deserves an evidentiary hearing. It is only by going outside the petitioner’s original petition that a fact question can be found to justify a hearing. The original petition alleges that counsel should have secured proof of the four prior felony convictions and thus avoided advising petitioner to plead guilty. Petitioner did not allege that he was not guilty of four prior felony offenses nor did he explain what counsel would have found to negate the prior convictions if he had investigated them. Before postconviction relief is warranted, a petitioner must demonstrate that he was prejudiced by the conduct of counsel. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983); Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978). Petitioner did not establish prejudice in his petition and the trial judge was correct to deny the petition without a hearing.

Hickman and Hays, JJ., join in this dissent.


author: Darrell Hickman, Justice.

text:
    Troy COLLINS and Jennilu COLLINS v. STATE of Arkansas
    CR 83-95
    658 S.W.2d 877
    Supreme Court of Arkansas
    Opinion delivered October 24, 1983

      Young & Finley, for appellants.

      Steve Clark, Atty. Gen., by: Velda P. West, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

We agreed to review this Court of Appeals decision because the judges were evenly divided, and the search and seizure issue merits our attention.

The trial court decided that a search warrant issued on the basis of information supplied by a confidential informant was not an unreasonable search prohibited by the United States Constitution. The Court of Appeals divided three to three on the issue, resulting in an affirmance of the conviction of Troy and Jennilu Collins for growing marijuana at their home in Newton County, Arkansas. Collins v. State of Arkansas, 9 Ark. App. 23, 658 S.W.2d 881 (1983). There are other issues in the case but we need only consider the one touching on the validity of the affidavit signed by a deputy sheriff which was the basis for the issuance of the search warrant. The warrant should not have been issued and the evidence produced was inadmissible.

Deputy Sheriff David Decker testified that one of his confidential informants came to him and told him of seeing marijuana plants in Troy Collins’ residence. Decker remarked that the time lapse had been too long and unless he knew the plants were still there he could not get a warrant. A week or so later the informant told Decker the plants were still there. Decker prepared an affidavit for a search warrant which is, in pertinent part, reproduced exactly:

That a confidential Informer contacted me and told me he had been at Troy Collin’s residence and had seen Marijuana Growing in subject’s hom; that my Informer had seen Marijuana Growing before and knows what it is. My informer has proved his reliability in the past with information he gave me on other cases. He is afraid of great bodily harm should his name be used. His information has always proved to be tue and reliable.

The warrant further recited that the informant was reliable due to “The fact that he has givin us information in the past that has proved out to be true and helped to solve cases.” The search warrant was issued by a municipal judge the same date based solely on the affidavit. The search was conducted that evening or the next. Three hundred and forty-seven growing marijuana plants were found in the Collinses’ residence, and their trial and conviction resulted.

The warrant certainly contained discrepancies, as the trial court observed, but aside from typographical errors and errors of form, the issue is whether the warrant is so defective as to void it. The Court of Appeals found it valid mainly on the basis that a common sense, practical approach should be taken in such matters.

Recently in Illinois v. Gates, _ U.S _, 103 S.Ct. 2317 (1983), the United States Supreme Court overruled previous decisions which held warrants obtained on the basis of informants’ tips must satisfy a strict “two prong” test. Instead the Court substituted a totality of the circumstances test, the one ordinarily used to determine probable cause in other instances. We have readily accepted the Gates decision in Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983), and have essentially tried to view warrants in a practical way for some time. See Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977).

While the Supreme Court clearly relaxed the rule on search warrants based on hearsay information supplied by confidential informants, it did not abandon all requirements for certain specific information. Bare conclusory statements are still insufficient. And while inferences the magistrate may draw are those which a reasonable person could draw, certain basic information must exist to support an inference. All the magistrate had in this case was the affidavit and the information which we have recited. We find one defect that cannot be cured. The affidavit mentions no time during which the criminal activity occurred. This defect could have been cured by the magistrate before he issued the warrant by either taking testimony from the officer and making a record of it, or simply requiring a new affidavit or amendment to the one presented. See Lunsford v. State, 262 Ark. 1, 552 S.W.2d 646 (1977).

The Court of Appeals found that growing marijuana is an ongoing criminal activity and the magistrate could have concluded that the criminal activity was recently seen by the informant. For that proposition the case of United States v. Johnson, 461 F.2d 285 (10th Cir. 1972) is cited. However, the affidavit in the Johnson case was a detailed affidavit of continuous criminal activity over a period of time, reciting dates, places and separate instances. In Johnson, the Court concluded: “[Wjhere the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.”

It is the uniform rule that some mention of time must be included in the affidavit for a search warrant. See 100 A.L.R.2d 525 (1965). The only softening of this position occurs when time can be inferred from the information in the affidavit. For example, where an affidavit recited that the contraband was “now” in the suspect’s possession and that the search was urgent, that was found to be adequate to satisfy the time requirement. Coyne v. Watson, 282 F. Supp. 235 (D.C. Ohio 1967). In another case where the affidavit said that contraband was “recently” seen, coupled with the use of present tense as to the location of the contraband, that was held to be sufficient. Sutton v. State, 419 S.W.2d 857 (Tex. Crim. 1967). There is no clue whatsoever given in the affidavit in this case of when the informant saw the growing marijuana. Time is crucial because a magistrate must know that criminal activity or contraband exists where the search is to be conducted at the time of the issuance of the warrant, not that' it may have been there weeks or months before. Otherwise, officials could use such information like blank checks to conduct searches at will, contrary to the purpose for which, and certainly not in the way, searches are permitted by our constitution. Searches of persons and places, especially residences, have to be one of the most serious undertakings of the law. And while legal technicalities cannot obstruct the right of the State to maintain order and bring about justice, neither can form be abandoned at the whim of law enforcement officials. Time is also important because we all have the unfettered right to know when we are accused of doing an illegal act. That is not an unreasonable nor technical demand of the law. Before a search is ordered it must be shown or be easily discernible when the contraband was seen or the illegal activity occurred.

We use a practical, common sense approach to examine search warrants but that approach cannot cure omissions of facts that are undisputedly necessary. This is especially true where great leeway is already given to authorities to use undisclosed informants and pure hearsay as a reason to search a person’s home.

Reversed and remanded.


author: Robert H. Dudley, Justice.

text:
    Cecil Ray JEFFERS v. STATE of Arkansas
    CR 79-213
    658 S.W.2d 869
    Supreme Court of Arkansas
    Opinion delivered October 24, 1983

      Henry C. Kinslow, for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant was found guilty of the crimes of rape, breaking and entering and theft of property. He appealed and the convictions were affirmed. Jeffers v. State, 268 Ark. 329, 595 S.W.2d 687 (1980). We then granted his petition to seek post-conviction relief based on the allegation of ineffective assistance of counsel. The circuit court held a Rule 37 hearing and denied relief. We affirm. Jurisdiction is in this court pursuant to Rule 29 (1) (b) and (e).

Appellant argues nine points of appeal. One of them is not related to the allegation of ineffective assistance of counsel, the only ground upon which we granted permission to proceed, and we do not consider that point. Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983).

Counsel is presumed effective and, for a petitioner to prove otherwise, he must: (1) overcome the presumption; (2) demonstrate that he was prejudiced by the conduct of his counsel; and (3) prove by clear and convincing evidence that the prejudice was such that he did not receive a fair trial. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981).

Appellant first argues that his counsel failed to properly conduct voir dire of the jurors or alternatively failed to move for a new trial on the grounds of juror bias. He does not abstract the record from the original trial and, at his post-conviction hearing, presented no evidence of the alleged failure to conduct voir dire. Our own examination of the original record reveals the following occurred:

THE COURT: Are any of you biased or prejudiced for or against Mr. Jeffers? Do any of you know of any reason why you could not serve in this case on the jury and try these cases as a juror and render a fair and impartial verdict based entirely upon the law and the evidence? If you know of any reason why you cannot, please hold up your hand. I see no hands.
All right. Now, how do you gentlemen — how would you like to arrive at a jury panel?
MR. GIBSON: It makes no difference to the State.
THE COURT: Mr. Cashion, do you have any —
MR. CASHION: I’d rather call them individually.
THE COURT: You’d rather call them individually?
MR. CASHION: Yes, sir.
THE COURT: All right. Do you want the jury to go to the other courtroom and examine them one at a time?
MR. CASHION: I would prefer that.
THE COURT: All right. Mr. Sheriff, take all the jury except Mrs. Pamela Ann Smith. She’s the first one.
Members of the jury, go with the Sheriff and go into the other courtroom there and you will be called back.

The individual questioning of each juror was not reported but there is no record indicating that it did not occur. We find no merit in the contention that counsel failed to properly conduct voir dire.

Appellant alternatively contends that counsel improperly failed to move for a new trial on the ground of juror bias. He asks that we assume five members of the panel were biased because they also sat as jurors in a trial for the murder of the prosecutrix’s sister. The appellant, in his brief, admits “Although asked by the court, the jurors denied knowing Mrs. Stephenson or being biased in any fashion.”

Appellant’s argument fails because he has not demonstrated bias on the part of any juror. Jurors are assumed to be unbiased and the burden of demonstrating actual bias of any juror is on the petitioner. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982). Appellant next contends that actual bias need not be proven under the federal standard. He cites the following paragraph from U.S. v. Dean, 667 F.2d 729 (8th Cir. 1982):

We conclude that, generally speaking, post-verdict orders for new trials on account of suspected but unproven juror bias are, and should be, granted only where the probability for juror bias is so great that in fairness it cannot be ignored. Thus, we are inclined not to make a distinction between possible prejudice and actual prejudice when addressing the issue of waiver. See Brumbagh, supra, 471 F.2d at 1130-31 (McCree, J., concurring.)

We will not now attempt to distinguish between possible prejudice and actual prejudice because there is no great possibility of jury bias in this case.

Appellant next argues that his attorney should have moved for a change of venue. He cites no pretrial publicity necessitating a change of venue but, with no record whatsoever, argues, “It is well known that the populace justly sympathized with” the prosecutrix. Appellant’s attorney at the original trial testified at the post-conviction hearing that he considered the motion but decided against it. It was a matter of trial strategy and within the realm of counsel’s professional judgment and is precluded as a matter of relief. Clark v. State, 274 Ark. 81, 621 S.W.2d 857 (1981). Further, the trial court’s finding that the jury was impartial and no prejudice was presented is not clearly erroneous.

The appellant insists that counsel improperly failed to raise the affirmative defense of self-induced intoxication. Appellant admitted that, while normally he was a “business man, ’ ’ he did break into the prosecutrix’s home and take the property as charged.

A. ’Cause I’ve ..never really broke into any houses before. Mainly I was a business.
Q. Business burglar?
A. Yes, sir. I’m a safe burglar.
Q. You’re a safe burglar?
A. Yes, sir. And just business.

However, he consistently stated that he had completed the burglary and was just outside of prosecutrix’s home when someone else committed the crime of rape. Under this set of facts, it is hard for us to imagine a worse strategy than the one appellant now proposes — that appellant, whose business was admitted to be burglary, wasn’t in the residence when the rape took place and he did not commit the rape, but, if he was in the house when the rape took place and if he was the one who committed the rape, he was too drunk to have formed the specific intent to commit the crime. The failure to defend the charge of rape on the basis of inconsistent defenses normally is not evidence of ineffective counsel. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983). Similarly, we cannot say that the decision not to use the same defense to the charge of breaking and entering or theft was ineffective assistance, even if it is a valid defense to those crimes. See Liebman, Voluntary Intoxication as a Defense to Crime, 1983 Ark. Law Notes 29.

Appellant next argues that counsel failed to object to a highly improper closing argument by the prosecuting attorney. Appellant offers no factual evidence in his abstract to support the claim. We are offered only conclusory allegations and they will not warrant post-conviction relief. Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982). However, of our own volition, we have examined the original record on redirect examination by the prosecuting attorney; the victim answered as follows:

Q. No, you have testified in this case and you remember what happened that night; you have seen the defendant here today; you have heard him testify. Is he the one that raped you?
A. I think he is.
Q. Are you sure of that?
MR. CASHION:
She answered your question, Mr. Gibson.
A. There is no doubt in my mind that it is Cecil Ray.
Q. I want to make sure that you know what you are saying.
A. Yes, sir.
Q. There is no doubt in your mind?
A. No, sir.

Later, after the state had rested a juror asked: “I would like to ask Mrs. Stephenson if it was the same voice.”

The court and counsel conferred and the jury was advised that the case had been developed by both the state and defendant and they would have to base their verdict upon the evidence which had been submitted. In the prosecutor’s closing argument, he stated:

Ladies and gentlemen of the jury, I am pleased to see that we have each completed the testimony necessary to decide this case today. I will try to go back over the facts as I recall them and give you the State’s version of this case.
I wish that I was in a position to know all the questions that you might have in your minds. There’s never been a case, I guess, that we ever did put on everything that would answer every single question. But we did here, one of two questions — that one of the jurors had. And that’s the reason I put Brenda Stephenson back on the stand at the close of the defendant’s testimony.
Rather than ask her a point blank question and try to lead her and tell her what to say, I asked her the question, “Now, Brenda, you have heard the testimony of the defendant, you have seen him here today; you’ve seen his size.” She’s heard his voice here today.
Then I asked her, “Are you convinced or did Cecil Jeffers rape you? Is he the one?” She has been in here listening to his testimony, seen his demeanor on the stand, seen how he acts, just like you have, and she heard his voice before. I feel like that if there was any doubt in her mind that that was his voice she heard that night, she would have told you.
She told you that it was Cecil Jeffers. This is the only and first time she’s had a real good opportunity to listen to him talk under normal conditions.

The prosecutor never did state, as appellant urges, that the victim had identified the appellant as her attacker by recognizing and identifying his voice. He merely went over much of the testimony of the victim and said that “she heard his voice before” and that she heard “his voice here today.”

The closing argument of the prosecution did not go beyond the reasonable inferences and deductions to be drawn from the testimony.

Further, the original record reveals that the jury was instructed that “opening statements, remarks during trial, and closing arguments of the attorneys are not evidence but are made only to help you in understanding the evidence and applicable law. Any argument, statements, or remarks of attorneys having no basis in the evidence should be disregarded by you.” In Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983), citing Harrison v. State, 276 Ark. 469, 637 S.W.2d 549 (1982), we found this instruction to be significant in removing any claimed prejudice because of the state’s closing argument.

Appellant next urges that his attorney failed to object to and attack the credibility of evidence introduced by the state. He cites no authority for the proposition. Appellant states that his attorney failed to attack the credibility of the state’s expert since he could not positively match the appellant’s hair with hair samples taken from the victim’s clothing. However, appellant fails to point out that his attorney, on cross-examination, did question the expert about the fact that hair is not like fingerprints, and about what the expert can tell from hair samples. Sufficient evidence was presented to the jury to allow them to draw their own conclusions about the hair samples. Appellant further states that hearsay testimony was allowed, without objection, to put the appellant’s military cap at or near the scene of the crime. He fails to indicate the testimony to which he refers. Appellant also argues that defense counsel failed to point out that the hair purporting to be the appellant’s was found on a pillowcase taken from the victim’s bed but that a state’s witness had testified that the bed in question was made up without the bedspread being pulled back. Again, there was sufficient evidence for the jury to consider the inconsistencies.

Likewise, defense counsel’s inability to find a supposed missing witness and call him as a witness, or else move for a continuance, will not warrant a finding of ineffective assistance of counsel under the facts of this case.

The name of the missing witness is Chuck Tremor. The appellant’s attorney stated that the appellant gave him the name of Tremor but that he was unable to locate him. The attorney inquired of the local police but they also were unable to locate him. A summons was issued for him by the state. Appellant’s testimony, at the post-conviction hearing, about Tremor’s location was as evasive as Tremor:

Q. Did you tell your lawyer where he was when the trial started?
A. Did I tell the lawyer where he was? I told him he participated. I couldn’t keep up with where he was at.
Q. Okay. Did you tell him . . . did you ever tell your lawyer where Charles Tremor was located the first time you talked with him?
A. The first time I talked with him?
Q. Yeah.
A. In what way do you mean?
Q. Well, the first time you talked with Mr. Cashion? Did you tell him about Charles Tremor?
A. I can’t recollect.
Q. Well, I assume you cannot recollect where Mr. Tremor was after you got arrested?
A. Yes, sir.
Q. Where was he?
A. I got a telephone call informing me where he was at at the Ashley County Sheriff’s Department and he was in Cameron, Louisiana.
Q. Cameron, Louisiana? Well, the question was . . . one of the questions was did you tell your lawyer about Chuck Tremor when you first talked with him?
A. When I talked to my lawyer on an occasion I know for a fact that I informed him of Mr. Tremor and where he might be located at, but I do not remember if it was exactly the first time that I spoke with him.
Q. But you don’t have any direct knowledge that Mr. Tremor’s body was located where you told your lawyer it might be, do you?
A. Ah, I can’t say I did.

Appellant next argues that his attorney did not act with diligence since he did not contact Mrs. Tremor in order to locate her husband. The appellant fails to mention that Mr. Tremor had ceased to live with Mrs. Tremor and, as a matter of fact, she was living with the appellant at the time of his arrest.

Finally, the attorney indicated that he thought his chances were better going to trial without Tremor. In that way, appellant could maintain that Tremor raped the victim, then ran away, and could not be found as a witness by trial time. On the other hand, if the trial were continued and Tremor was located, Tremor would either corroborate the testimony of the victim or else confess, the latter being, at best, a very remote possibility. This was a matter of trial strategy and within the realm of counsel’s professional judgment, precluding this as a ground of relief. Clark v. State, 274 Ark. 81, 621 S.W.2d 857 (1981).

Appellant’s sixth argument is that his attorney failed to properly investigate the case and put on exculpatory evidence although it was readily available. No citations are given. Appellant contends that there was evidence and a witness to verify the fact that there were two sets of clothes, two different sizes found near the scene supporting appellant’s contention that he was not alone on the night the crimes occurred. He further contends that there was a witness known to defense counsel that testified pieces of rope found at the scene did not match rope allegedly sold to appellant some days prior to the incident. Appellant states that no effort was ever made to subpoena the alleged perpetrator, Chuck Tremor, or otherwise investigate the possibility that the appellant did not commit the rape.

Although appellant does not indicate who the witness was that could have testified about the rape, it is true that, at the original trial, State Trooper Penson was not.called as a witness to testify that he found a jumpsuit, a pair of regular waist high pants and a black tee shirt and that the jumpsuit and pants were different sizes.

We see no prejudice in the defense attorney’s decision not to call the trooper because Deputy Sheriff Lyle Bates was called as a witness and not only testified about the clothes but brought them into the courtroom and they were ordered into evidence. Appellant was cross-examined on them as follows:

Q. All right. You were in a hurry, and you dropped things as you ran out and you took the clothes off that you had on that you were covered up with?
A. All I had on —
Q. It was your business to dress in black clothes?
A. Yes.
Q. And you had this black tee shirt?
A. No, sir.
Q. You didn’t have this black tee shirt?
A. No, sir.
Q. What was it doing out there?
A. Chuck wore it.
Q. Oh, he wore it?
A. (No answer)
Q. What size do you wear?
A. I don’t — I couldn’t really tell you.
Q. You don’t know what you wear?
A. I wear about a twenty-nine in the waist.
Q. No. Shirt?
A. I’m trying to think of that.
Q. You are about a medium size, aren’t you?
A. You want to check this one?
Q. Do you know?
A. Not really.
Q. You don’t even know?
A. No, sir.
Q. You don’t check it out before you take it, you just steal it?
A. I don’t steal clothes.
Q. You don’t steal clothes?
A. No, sir.
Q. Well, what size does Chuck wear? What size boy is he?
A. He’s about the same size I am. Maybe a little bit bigger.
Q. He just happens to be the same size you are?
A. Yes, sir.
Q. Has he got the same kind of hair you’ve got?
A. Yes, sir. Maybe around — It’s about the same texture.
Q. Well, are there any of these things yours? Have you seen them?
A. Yes, I’ve seen them all before.
Q. Any of them yours?
A. That jump suit right there.
Q. The jump suit is yours?
A. Yes, sir.
Q. And you left it laying out there between — close to the back packs?
A. Yes, sir.
Q. That’s where you undressed and took it off?
A. I took it off. I had my jeans on under that. I took off that there and threw it by these packs.

The seventh point raised on appeal is that the court erred in denying appellant post-conviction relief because the statement made by defense counsel at trial strongly indicates that the trial counsel’s best efforts were not put forth in defense of the appellant. Appellant states that at the conclusion of the proceedings at trial, defense counsel, in the presence of appellant and other witnesses, approached the victim and said to her, “See... ? I did what I promised. ” The attorney at the post-conviction relief hearing testified as follows:

Q. Ah, Mrs. Wilkerson testified that at the end of the trial you turned around or she heard you say “I told you I’d do or I did what I said I would do,” or something to that effect?
A. That’s correct.
Q. And then when she looked around she decided that you were talking to Brenda Stephenson?
A. Possibly. I don’t know what she did.
Q. Ah, did you have any agreements with Mrs. Stephenson when you interviewed her?
A. I asked for permission, ah, to interview Mrs. Stephenson personally. Ah, the sheriff’s officials and everybody said that she was upset and everything like that, but that they would call her and ask her if I could come over there. Ah, I did go to the butane place or whatever it is, I think it is butane, where she works.
Q. Her place of business?
A. Her place of business, and, ah, one of her employers was there and I asked if I could talk and he said yes and, as a matter of fact all the con ver... I think he left... all the conversation was between Mrs. Stephenson and myself. I told her that I represented Mr. Jeffers on the charges and that I wanted to know everything that happened, if she would tell me what it would be. I told her beforehand that, ah, she didn’t have to worry that I was going to blacken her name or bring things in that I didn’t think were necessary for the trial. That I was there to get the statement and consequently, she didn’t hold back on anything she told me.

There is no evidence which would support the allegation that the attorney did not put forth his best efforts on defendant’s behalf or that there was any collusion between defense counsel and the victim.

Appellant’s last argument is that his attorney failed to advise him of his right not to incriminate himself and also failed to move to suppress an incriminating statement which was improperly taken. There is no testimony in the record indicating that appellant’s counsel failed to inform him of his Fifth Amendment rights. The lack of a factual basis renders the allegation a conclusion. It is settled that counsel is presumed effective and appellant bears the burden of overcoming this presumption. Rightmire v. State, 275 Ark. 24, 627 S.W.2d 10 (1982). A conclusion, unsupported by the facts presented, that trial counsel failed to inform appellant of his right against self-incrimination will not suffice to overcome this presumption and warrant post-conviction relief. Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978).

Appellant next contends trial counsel was ineffective in failing to move to suppress an incriminating statement taken from appellant. Appellant’s statement was not introduced at the trial but he argues that he anticipated the introduction of the statement and testified to lessen its impact. Once again, however, appellant’s argument is not supported by facts from the post-conviction hearing. Appellant did not testify that he took the stand at the trial in anticipation of the statement’s introduction. Appellant’s trial counsel testified appellant participated in the trial decisions and was kept informed of counsel’s opinion of the evidence and the choices appellant faced.

Affirmed.


author: Per Curiam. Richard B. Adkisson, Chief Justice,

text:
    Paula C. RASMUSSEN v. STATE of Arkansas
    CR 82-78
    658 S.W.2d 867
    Supreme Court of Arkansas
    Opinion delivered October 24, 1983

      Lessenberry ir Carpenter, by: Jack Lessenberry, for petitioner.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for respondent.
   Per Curiam.

Petitioner Paula C. Rasmussen was convicted of first degree murder and sentenced to a term of life imprisonment in the Arkansas Department of Correction. We affirmed. Rasmussen v. State, 277 Ark. 238, 641 S.W.2d 699 (1982). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37 on the ground that her counsel R. Wayne Lee was ineffective.

Petitioner alleges that after trial she learned that the deputy prosecuting attorney had spoken with Mr. Lee outside her presence and offered to recommend a sentence of 15 years imprisonment if she would plead guilty. She contends that the offer of a negotiated plea was never communicated to her. Petitioner has attached to her petition an affidavit of the deputy prosecutor in which he states that he made the offer to Lee. He avers that Lee rejected the offer immediately but said he would communicate it to his client. Lee later told the deputy prosecutor that petitioner had refused the offer.

A plea agreement is an agreement between the accused and the prosecutor, not between counsel and the prosecutor. See A.R.Cr.P. Rule 25.2. As such, counsel has the duty to advise his client of an offer of a negotiated plea. Here, however, petitioner does not allege that she would have accepted the plea or that she would now accept it. This is a significant point because, even if we found merit to petitioner’s bare allegation that her plea was not communicated, there would be no grounds on which to set aside the finding of guilt or to order a new trial. The most that would be appropriate would be a simple reduction in sentence to 15 years. Accordingly, the petition is denied without prejudice with regard to the allegation.

In all other respects the petition is denied with prejudice. Petitioner alleges that several persons would have testified to her good character and “other matters” if subpoenaed. She contends further that no witnesses were subpoenaed. The record reflects that several witnesses testified for the defense. The decision to call some persons as witnesses while rejecting others is normally a matter of trial strategy. Questions relating to trial tactics about which experienced advocates could disagree are not grounds for relief under Rule 37. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983); Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981); Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973).

Petitioner also asserts that counsel was ineffective in that he failed to obtain a police recording of petitioner’s call to the police department after the victim was shot. She does not explain, however, why the recording was important to her defense or how she was prejudiced. Petitioner also fails to state specifically how she was prejudiced by counsel’s failure to object to the prosecutor’s asking whether the victim was intoxicated; his failure to obtain and introduce articles of petitioner’s clothing; his failure to develop evidence that the gun which killed the victim was loaded with target bullets; his failure to adequately prepare a stipulation concerning some eyeglasses; his failure to adequately develop evidence as to petitioner’s impaired vision; and his failure to prepare properly for trial. Before we grant postconviction relief, a petitioner has the burden of showing the relevancy of the allegation to petitioner’s trial. It is unlikely that any two attorneys would conduct a defense in the same way. It is a simple matter to allege in hindsight that counsel would have been successful, that is, would have obtained a favorable verdict or a lesser sentence, had he developed certain evidence or objected to a particular question. Unless a petitioner can show, however, by clear and convincing evidence that he or she was prejudiced by counsel’s representation and the prejudice was such that he was denied a fair trial, ineffective assistance of counsel has not been established. Pitcock v. State, 279 Ark. 649, 631 S.W.2d 393 (1983); McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983); Hill, supra; Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981).

Petition denied without prejudice in part.

Adkisson, C.J., and Hays, J., dissent.

Richard B. Adkisson, Chief Justice,

dissenting. There is no reason to grant an evidentiary hearing in this case. Even though an attorney may have an ethical duty to communicate the offer of a negotiated plea to his client, it is not ineffective assistance of counsel under Rule 37 to fail to do so if the petitioner is subsequently afforded a fair trial and found guilty. There is no right to negotiate a plea agreement and the trial court is under no obligation to accept such a plea even if the prosecutor and the accused have agreed to it. To require the trial court to do so in this case is contrary to the Rules of Criminal Procedure. See Rule 25.3.

Rule 37 was intended to assure the accused a fair trial or competent advice if he chooses to plead guilty. Although ineffective assistance of counsel can be predicated on the failure to render competent advice as to a plea of guilty, Mitchell v. State, 271 Ark. 512, 609 S.W.2d 333 (1980), oncea trial has occurred, the standard for reviewing the effectiveness of counsel is whether the petitioner was afforded a fair trial. Perry v. State, 279 Ark. 213, 650 S.W.2d 241 (1983); Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981). The mere fact that a petitioner denies having been apprised of a plea bargain should not be allowed to obscure the ultimate fact that the petitioner was accorded a fair trial, found guilty and sentenced. Since the case was affirmed on appeal and we find no cause to grant postconviction relief on grounds related to the trial, it is incongruous that the jury’s valid finding of guilt or the sentence imposed should be placed in question because a pre-trial plea bargain may not have been communicated.

Hays, J., joins in this dissent.


author: Richard B. Adkisson, Chief Justice.

text:
    FIRST STATE BANK OF SPRINGDALE, Arkansas v. Charles W. SHAVER and Darlena SHAVER, Husband and Wife
    82-203
    659 S.W.2d 504
    Supreme Court of Arkansas
    Opinion delivered October 31, 1983

      Herdlinger, Jacoway & Stanley, by: Roy E. Stanley, for appellant.
    No brief for appellees.
   Richard B. Adkisson, Chief Justice.

Appellant, First State Bank, junior mortgagee in a foreclosure action against appellees, Charles and Darlena Shaver, sought summary judgment in foreclosure of a business loan of $46,902.57 made September 5,1980. The Washington County Chancery Court found the loan agreement to be usurious under the governing federal law, section 511 of the Monetary Control Act of 1980 (12 U.S.C. § 86a) and ordered, as remedy, all payments made by the Shavers to be credited as principal.

Since an examination of the record reflects the appeal is from the original judgment, this case is governed by our per curiam in First State Bank of Springdale v. Shaver, 279 Ark. 30, 648 S.W.2d 453 (1983) in which we held that the notice of appeal was not filed within the statutory time limit provided for in Ark. R. App. P. Rule 4 (a). The judgment of the lower court is affirmed and the appeal is dismissed.


text:
    E. I. DU PONT DE NEMOURS AND COMPANY v. Tansil DILLAHA d/b/a TANSIL’S BODY SHOP
    83-120
    659 S.W.2d 756
    Supreme Court of Arkansas
    Opinion delivered October 31, 1983
    [Rehearing denied December 5. 1983.]

      Friday, Eldredge ér Clark, by: Robert V. Light, for appellant.

      Givens ir Buzbee, by: Art Givens, for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, E.I. DuPont de Nemours (hereinafter DuPont), appeals from a jury verdict of $40,000 against it for supplying to appellee, Tansil Dillaha, doing business as Tansil’s Body Shop, a defective paint thinner which caused blotchy finishes on cars painted in appellee’s shop. The products liability action was submitted to the jury on alternate theories of strict product liability, breach of implied warranty of fitness for a particular purpose, and breach of implied warranty of merchantability. The issue on appeal is whether there was sufficient evidence to support the jury’s verdict for appellee.

Dillaha operates an automotive paint and body shop in Sherwood. He consistently used Imron polyurethane enamel and other DuPont products supplied by Hackman Paint Supply Company (hereinafter Hackman). Beginning in June, 1981, cars painted in his shop were returned with millions of tiny bubbles in the finish. Dillaha was forced to paint the cars over numerous times. Both Hackman and DuPont sent representatives to assist in resolving the problem. Recommendations regarding changes in procedure and materials were made and adopted. In October, the representative from DuPont diagnosed the problem as solvent popping, directing Dillaha’s attention to a dented-up drum of DuPont paint thinner purchased from Hackman in June. The DuPont representative drew a sample of thinner from this drum but did nothing with it. Dillaha’s problems continued until December, 1981, when he returned all salvageable materials purchased from Hackman and obtained supplies from another source. Just before trial, Dillaha had the sample analyzed and compared with several samples of DuPont thinner. The sample from the drum purchased from Hackman did not chemically match any of the DuPont thinners and was indisputably polluted.

Since the j ury returned a general verdict, the j ury could have found DuPont liable under any one of the three theories submitted to them: strict product liability, Ark. Stat. Ann. § 85-2-318.2 (Supp. 1983); breach of implied warranty of fitness for a particular purpose, Ark. Stat. Ann. § 85-2-315 (Add. 1961); or breach of implied warranty of merchantability, Ark. Stat. Ann. § 85-2-314 (Add: 1961).

In order to recover under the strict product liability theory, the plaintiff must prove 1) that he has sustained damages; 2) that the defendant was engaged in the business of manufacturing or assembling or selling or leasing or distributing the product; 3) that the product was supplied by the defendant in a defective condition which rendered it unreasonably dangerous; and 4) that the defective condition was a proximate cause of plaintiff’s damages. The Product Liability Act of 1979 enacted by the Arkansas General Assembly, while creating no new cause of action, clarified the strict product liability theory by defining terms, establishing a limitations period, and enumerating defenses and indemnification remedies. Ark. Stat. Ann. §§ 34-2801 — 2807 (Supp. 1983).

To recover for breach of an implied warranty of fitness for a particular purpose, the plaintiff must prove 1) that he has sustained damages; 2) that at the time of contracting, the defendant had reason to know the particular purpose for which the product was required; 3) that defendant knew the buyer was relying on defendant’s skill or judgment to select or furnish the product; 4) that the product was not fit for the purpose for which it was required; 5) that this unfitness was a proximate cause of plaintiff’s damages; and 6) that plaintiff was a person whom defendant would reasonably have expected to use the product.

In recovery for breach of implied warranty of merchantability, the plaintiff must prove 1) that he has sustained damages; 2) that the product sold to him was not merchantable, i.e., fit for the ordinary purpose for which such goods are used; 3) that this unmerchantable condition was a proximate cause of his damages; and 4) that he was a person whom the defendant might reasonably expect to use or be affected by the product.

On appeal, the evidence must be viewed in the light most favorable to the appellee, and the trial court must be affirmed if there is substantial evidence to support the jury’s verdict. Substantial evidence is that which is of sufficient force and character that it will, with reasonable and material certáinty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). Unless we determine that the trial court’s decision is clearly erroneous, we will affirm its finding that the jury’s verdict was not clearly against the preponderance of the evidence. Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982).

The jury’s verdict did not specify which one of the theories of liability it based its conclusion on. The record reflects, however, sufficient evidence to support the jury’s verdict that the cause of damage to the finish was the use of DuPont paint thinner and that the drum of thinner could not have been contaminated in either Hackman’s shop or appellee’s shop. Dillaha testified that his problem began when he purchased the thinner in June and continued until December. The DuPont thinner was the only thinner used during this period. Dillaha changed many of his materials and procedures, but none of the changes alleviated the problem. Testimony from the chemist established that the sample drawn from the drum labeled with DuPont’s label and purchased from Hackman was undoubtedly contaminated. The owner of Hackman testified there was no way that a DuPont barrel, or anybody’s barrel, could have been opened, adulterated, and resealed while it was in his shop. Although there was conflicting evidence, we conclude there was substantial evidence to support the jury’s verdict that DuPont was liable for damages caused by its defective product under any one of the three theories of liability.

The jury’s verdict found only DuPont, the manufacturer, liable for the defect. A manufacturer’s liability to a consumer has been well-established. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916); E.I. DuPont deNemours & Co. v. Universal Molded Products Corp., 191 Va. 525, 62 S.E.2d 233 (1950); Sabloff v. Yamaha Motor Co., 113 N.J. 279, 273 A.2d 606 (1971); see also R. Hursh & H. Bailey, American Law of Products Liability § 3:40 (2d ed. 1975). Appellant fails to provide persuasive support for his argument that under the doctrine of respondeat superior a verdict in favor of Hackman, the dealer, would exonerate DuPont, the manufacturer.

Neither is there merit in appellant’s argument that the trial court erred in excluding as evidence proffered testimony that appellee had used various drugs. Such evidence was irrelevant and was properly excluded under Unif. R. Evid. 402.

Affirmed.


text:
    Marvin S. HEATH et al v. Parker CLEAR, Administrator of the Estate of Gladys Biggers CLEAR, Deceased
    83-123
    659 S.W.2d 504
    Supreme Court of Arkansas
    Opinion delivered October 31, 1983

      Frierson, Walker, Snellgrove & Laser, by: G. D. Walker, for appellant.

      Penix, Penix, Mixon <fr Lusby, for appellee.
   George Rose Smith, Justice.

Is the distinction between ancestral estates and new acquisitions now recognized in the Arkansas law of descent and distribution? The probate court correctly held that the distinction was abolished in 1969 and has not been reinstated. Ark. Stat. Ann. § 61-148 (Repl. 1971).

When the decedent, Gladys Biggers Clear, died intestate and without descendants in January 1982, her estate consisted principally of lands that were formerly owned by her late father, R. S. Biggers, and would have been ancestral property before such estates were abolished for the purpose of intestate succession by Act 303 of 1969, an extensive revision of our inheritance laws. Under Section 19 of that 1969 act the decedent’s property would pass to her surviving husband, Parker Clear, to whom she had been married for 53 years. § 61-149 (b).

The present petition for a determination of heirship was filed by the appellants, the decedent’s nephew and sister, who argue that although ancestral estates were abolished as to intestate succession by the 1969 act, such estates were completely restored by Section 23 of Act 714 of 1981, which recognizes the distinction between ancestral estates and new acquisitions in the determination of a surviving spouse’s dower or curtesy. § 61-206 (Supp. 1983). Under that contention Mrs. Clear’s surviving husband would receive only a life estate in half the lands under Section 61-206 instead of title to all the lands under Section 61-149 (b).

The history of our statutes effectively refutes the appellants’ argument. The 1969 revision of the inheritance laws abolished the distinction between ancestral estates and new acquisitions in the devolution of property by intestacy, but the Committee Comment to the pertinent section states positively: “This section is not intended to abolish the distinctions between Ancestral and New Acquisition property in the dower and curtesy statutes.” Comment to § 61-148. Therefore, in spite of the abolition of ancestral estates in the law of descent, the surviving spouse’s dower or curtesy continued to be diminished in the case of ancestral property. §§ 61-206 and 61-228 (Repl. 1971).

A new development occurred on February 23, 1981, when this court held many of our dower and curtesy statutes unconstitutional as discriminating between husbands and wives. Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981); Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981). Only thirty days later Act 714 of 1981 was adopted. That statute revised some seventy specified sections of the compiled statutes, to eliminate distinctions between spouses. Both the title and the emergency clause declared its purpose, self-evident anyway, to provide for equality in the property rights and interests of married persons. Dower and curtesy rights were made equal, but the previous distinction in that field between ancestral and newly acquired property was retained. The statute specified the 70-odd sections that were being amended, but there was no reference whatever to Section 61-148, which abolished that distinction as to intestate succession. The legislative purpose being absolutely clear, we cannot construe the 1981 act as having been intended to accomplish any purpose except the attainment of equality in the matter of marital property rights. That was the probate judge’s holding, which is correct.

Affirmed.


text:
    CITY OF FAYETTEVILLE v. IBI, INC.
    83-125
    659 S.W.2d 505
    Supreme Court of Arkansas
    Opinion delivered October 31, 1983

      James N. McCord, City Atty., for appellant.

      Kincaid, Horne & Trumbo, by: David Horne, for appellee.
   George Rose Smith, Justice.

The appellee IBI is a corporation proposing to plat and develop residential subdivisions within the territorial planning jurisdiction of the City of Fayetteville. When IBI sought the Fayetteville Planning Commission’s approval of a proposed 7.95-acre subdivision, the commission refused to approve it unless IBI made a contribution to the city of $85.00 per lot, the money to be invested at interest and eventually to be used for the acquisition or development of public parks in the vicinity. IBI refused to make the contribution and brought this suit for a j udgment declaring the pertinent municipal ordinances and regulations to be unconstitutional in part and for an injunction against their enforcement. By agreement the facts were either stipulated or were conceded to conform to the depositions of the chairman and the administrator of the planning commission. This appeal is from a decree holding the required contribution by IBI to be unconstitutional, on various grounds.

In 1957 the legislature enacted a comprehensive act authorizing municipalities to adopt and enforce plans for the development of land within the municipality and within five miles of its city limits. Ark. Stat. Ann. §§ 19-2825 to -2831 (Repl. 1980). Pursuant to that act the city of Fayetteville created a planning commission and in 1970 and 1981 adopted the ordinances now challenged by IBI.

Under Fayetteville’s Comprehensive Land Use and Public Facilities Plan (1970-1990), the territory within the planning commission’s jurisdiction is divided into four districts, which are each subdivided into several neighborhoods. With respect to public parks, the planning commission projected the maximum possible residential population for each neighborhood by 1990. It then determined the number of acres of public parks that would be needed in each neighborhood if and when that maximum was reached. By subtracting the existing park acreage from the projected need, the planning commission determined the park acreage that would be needed in each neighborhood if it reached its maximum residential population.

IBI’s specific neighborhood comprises more than a thousand acres, the exact figure not being shown. Twenty-eight acres of parks will be needed if that neighborhood reaches its projected maximum population. There being now only twelve acres of parks in the neighborhood, there may be a deficit of sixteen acres. To provide for the acquisition of the needed acreage, every developer of a new residential subdivision must dedicate a specified fraction of an acre for each residential unit or make a cash contribution in a specified amount in lieu of the dedicated land. No dedication of land will be accepted unless the planning commission finds it to be suitable for park purposes and consistent with the city’s general plan.

The governing statute, Section 19-2829 (c) contains two paragraphs applicable to this case:

The regulations [approved by the city’s legislative body] shall require the developer to conform to the plan or plans currently in effect. The regulations may require the reservation, for future public acquisition of land for community or public facilities indicated in the plan or plans. Such reservations may extend over a period of not more than one year from the time the public body responsible for the acquisition of reserved land is notified of the developer’s intent.
When a proposed subdivision does not provide an area or areas for a community or public facility based on the plan or plans in effect, the regulations may provide for reasonable dedication of land for such public or community facilities, or for a reasonable equivalent contribution in lieu of dedication of land, such contribution to be used for the acquisition of facilities that serve the subdivision.

In most cases passing upon the question, similar statutes have been held to be constitutional. Annotation, 43 A.L.R. 2d 862 (1972). We need not reach the constitutional issue, however, for in our opinion Fayetteville does not yet have a sufficiently definite plan to justify the contribution it seeks to exact from IBI and other developers.

So far, the Fayetteville plan is nothing more than a statement of broad possibilities for the future. There is an approved map of the four districts and their component neighborhoods. There is a determination of the park acreage that will be needed in each neighborhood if it reaches the population growth projected for 1990. There is a finding of the amount of land or money per residential unit that each developer must contribute toward future parks or park equipment. But that is all.

The two planning commission witnesses made no pretense of saying that any definite plan for the specific location of future parks now exists. IBI could not have offered any land, presumably anywhere, in the required fractional acreage that would have been accepted by the city. No land has been accepted from any developer; only contributions of money are acceptable. No location for any future park has been determined. Such locations will be decided on a case-by-case basis, as the particular area develops in the future. This is said to be good planning, which no doubt it is. The money contributed will be placed in an interest-bearing account, but there is no way of saying just when it will be spent, or even for what, since it may be used not only for the acquisition of land but also for equipping existing or future parks.

As we read the statute, it contemplates something more specific than the Fayetteville plan in its present stage. The statute requires the developer “to conform to the plan or plans currently in effect.” § 19-2829, supra. In effect there is no plan in effect in Fayetteville, unless a map and a statement of projected deficiencies in park acreage can be regarded as a plan currently in effect. The witnesses did not know whether any acreage in IBI’s entire neighborhood is suitable for park purposes; that must depend upon the future growth of the residential area. There is apparently no way of determining when, if ever, the contributed money will be spent, or where, other than in the district, or for what, except as the planning commission may eventually decide. Yet IBI must make its contributions now, with no way of assuring its purchasers of residential lots that the increased price they must pay will result in their access to a public park within ten years or even within fifty years.

The statute confirms the view that something reasonably definite is essential to a plan requiring the dedication of land or the contribution of money. In addition to the reference to the plan “currently in effect,” it is required that should the city require the developer to reserve land for future public acquisition or public facilities, that reservation may extend only for a period of not more than one year from the time the city is notified of the developer’s intent. § 19-2829, quoted above. Another section of the statute provides that the city may adopt a master street plan or a community facilities plan, the latter apparently including public parks, but no parcel of land lying within a mapped street or proposed public use facility shall be privately developed until one year after the city has been notified to execute a written option to acquire the land or file a suit for its condemnation. § 19-2827 (d) and (g). Thus the city in two specific instances is required to act within a period of one year. We are unwilling to say that the legislature intended for the cash contributions to be made in return for a vague assurance that the money would be spent at some time in the future, somewhere in the neighborhood, for some public park purpose, with no provision for a refund to the contributor even if the residential area should never be developed as expected.

Affirmed.


author:
John I. Purtle, Justice.
      Darrell Hickman, Justice,

text:
    DELTA SPECIAL SCHOOL DISTRICT NO. 5 v. McGEHEE SPECIAL SCHOOL DISTRICT NO. 17 et al
    83-118
    659 S.W.2d 508
    Supreme Court of Arkansas
    Opinion delivered October 31, 1983

      Bridges, Young, Matthews, Holmes ir Drake, for appellant.

      Gibbs Ferguson, for appellees.
   John I. Purtle, Justice.

The chancellor held that children of parents who are residents and domiciliaries of Delta Special School District No. 5 could attend the McGehee schools by paying tuition to the McGehee district or by having guardians, who reside in the McGehee district, appointed for the children. Appellants argue three points for reversal. We consolidate them for purposes of this opinion. The chancellor was clearly erroneous and the order must be reversed and the cause remanded.

The parents of Robin Cook, who reside in and are domiciliaries of Delta Special School District No. 5, had been sending her to McGehee Special School District No. 17 for two years. They paid the McGehee district tuition but did not have the consent of Delta. The Biggs and Rancifer children had been attending the McGehee schools without benefit of tuition payments or guardianships. The facts are not in dispute. The trial court held that children of one district could attend another district by paying tuition or by having “school guardianships” arranged, disregarding the requirement that both districts must agree to the transfers.

The question presented here is whether students who reside and are domiciled in one district may attend another district without the consent of both districts. In order to decide this question we must consider Acts 436 and 828 of the 1981 Arkansas General Assembly. These acts are codified in Ark. Stat. Ann. §§ 80-1528 and -1501 (Supp. 1983) respectively.

Act 436 of 1981 deals with the subject of transferring students between districts and states:

Upon the petition of any person residing in any particular school district (resident district), to transfer the children or wards of such person to another school district (receiving district), the Board of Directors of the resident district may enter into an agreement with the Board of Directors of another school district transferring the children to the receiving district for purposes of education . . . After the petition has been approved by the Board of Directors of the resident district and the Board of Directors of the receiving district, copies of such written consent shall be filed in the office of the County Clerk, with the person filing the petition and in the administrative office of the respective school districts. This legal transfer of children from one district to another places the responsibility for the education of the children on the receiving district and permits the receiving district to count these children in average daily membership for state aid purposes.

Act 828 of 1981 concerns the right to a free education and states:

The public schools of any school district in this State shall be open and free through completion of the secondary program, to all persons between the ages of six (6) and twenty-one (21) years who are domiciled in the district or, in the case of minors, whose parents or legal guardians are domiciled in the district, or to all persons between these ages who have been legally transferred to the district for education purposes.

The plain meaning of the words in Act 828 of 1981 shows that these children had a right to a free education in the district wherein they are domiciled. It is equally plain that Act 436 of 1981 requires the written agreement of both the sending and receiving district before a child domiciled in one district may attend school in another district.

We have previously held that both districts must consent to a transfer before a student could change districts. Cord-Charlotte School District No. 8 v. Independence County Board of Education, 271 Ark. 217, 608 S.W.2d 12 (1980).

The guardianships in the present case were established for the sole purpose of evading the law which requires both districts to consent prior to a legal transfer of students between districts. To allow such a subterfuge as presented here might lead to irreparable harm to some districts and could, quite conceivably, lead to recruiting of outstanding athletes and other special students.

We hold that it was error to allow children who reside in and are domiciled in the Delta Special School District No. 5 to attend the McGehee schools without the written agreement of both districts. The case is remanded with directions to proceed in a manner consistent with this opinion.

Reversed and remanded.

Adkisson, C.J., and Hickman, J., concur.

Darrell Hickman, Justice,

concurring. The legislation exists which can prevent parents from seeking a better public education for their children. Perhaps it is wise and perhaps it is not, that is not for us to say. I concur to point out that I believe a guardianship can exist which will permit a child to attend a public school in a district separate from the parents.

Adkisson, J., joins in this concurrence.


author: John I. Purtle, Justice.

text:
    Arthur BRADLEY, Jr. v. ARKANSAS LOUISIANA GAS CO.
    83-133
    659 S.W.2d 180
    Supreme Court of Arkansas
    Opinion delivered October 31, 1983

      Spencer, Spencer & Shepherd, P.A., for appellant.

      Vickery & Jones, P.A., for appellee.
   John I. Purtle, Justice.

The chancellor held that appellee, Arkla Gas Company, had the right to enter upon appellant’s property pursuant to an easement given to Arkla in 1960 by appellant’s predecessor in title. On appeal it is argued that Arkla must obtain a new grant because the 1960 easement was exercised and a pipeline was located on a portion of appellant’s property which established the bounds of the easement. We agree with the argument presented by appellant.

The facts reveal that in 1960 appellant’s predecessor in title, Mary Pauline Biles, granted appellee a right of way to lay, maintain, alter, repair, operate and remove pipelines across certain lands, including the tract here in question. There was no metes and bounds description or any other description of the exact location of the right of way grant for the pipelines. Sometime thereafter Arkla placed a gas pipeline across this property. The pipeline as originally installed ran down the median strip of James Boulevard. The pipeline easement occupied land to a width of B0 to 40 feet. In 1979 the highway department constructed a bypass to State Highway 82. The construction of the bypass caused appellee to decide to relocate its pipeline. Appellant was approached by an agent of appellee with a request that he grant appellee another right of way. Appellant refused to make a new grant and warned appellee to stay off his property. Nevertheless, appellee went upon appellant’s land and took possession of a strip of land 42 to 49 feet in width. Upon this new right of way, Arkla laid an additional pipeline. The new pipeline was about a hundred feet south of the existing right of way occupied by appellee’s pipeline and adjacent to a one hundred foot right of way occupied by A.P.& L. Appellant filed a complaint in ejectment in the Union County Circuit Court. The circuit court transferred the case to chancery for the sole purpose of construing the various recorded instruments involved in the action and delineating and declaring the rights and interests arising thereunder, and to specifically determine whether Arkla had exceeded the rights possessed by it under the various instruments. The chancellor held that appellee had the right, under the 1960 grant, to relocate its pipeline across appellant’s property in the manner in which it had been done. This appeal is from the ruling of the Union County Chancery Court.

The issue before this court is whether appellee had the right, under the 1960 grant, to relocate its pipeline across appellant’s land without obtaining a new right of way grant. The original grant states that the grantor granted: “ . . . the right to lay, maintain, alter, repair, operate and remove pipe lines for the transportation of oil or gas ...” The description of the grant was the East half of the East half of the Northeast quarter of the Northeast quarter, Section 36, Township 17 South, Range 16 West. Since no specific location of the right of way was given, the grantee was free to locate it any place on the described property it chose, subject to accepted standards of reasonableness and convenience. The appellee made the selection in the sixties and located its pipeline in an area of its own choosing.

Relying upon a sentence which had been stricken from the 1960 grant of right of way, stating, “Should more than one pipe line be laid under this grant at any time the same consideration shall be paid for each line so laid. . . the court ruled in favor of the appellee. It is clear that the intent of the parties was to delete the foregoing provisions of the contract which had been prepared by appellee. The trial court also emphasized the word pipelines rather than the right of way. We know of no reason why more than one pipeline cannot be placed within one right of way. Even if the word pipelines were construed to mean that appellee acquired the right to lay more than one pipeline across appellant’s property we still would have to consider that the grant was for a single right of way. This language clearly indicates the grantor intended to allow the grantee a single right of way. In any event, the appellee selected the placement of its right of way and installed a pipeline thereon. Instruments are usually construed against the party preparing such. Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974). In construing conveyances the objective is to ascertain the intention of the parties. Buford v. Dearing, 255 Ark. 538, 500 S.W.2d 931 (1973). When the exact location of a right of way is not described, its bounds will be determined by lines of reasonable enjoyment. Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S.W. 645 (1924).

Appellee cites several cases supporting the right to lay additional lines on existing easements. That is not the problem presented in the present case. Such cases primarily related to secondary easements which we discussed at length in Loyd v. Southwest Arkansas Utilities Corporation, 264 Ark. 818, 580 S.W.2d 935 (1979), and have little bearing on the issues presently before us.

In the early case of Board of Directors of St. Francis Levee Dist. v. Bowen, 80 Ark. 80, 95 S.W. 993 (1906), it was held that when the grantee selects a right of way not specifically described in the grant, it becomes fixed and the grantee has no right to go upon other parts of the grantor’s land without a new grant. Ten years later in the case of St. Louis, I.M. & S. Ry. Co. v. Stevenson, 125 Ark. 357, 188 S.W. 832 (1916), this court held that a railway company which had acquired an undesignated right of way approximately 30 feet in width could not subsequently extend the limits of the right of way beyond the territory already occupied without a new grant from the owner of the land. The owner of the servient estate has the right to delimit a nondefined right of way but upon failure to do so the holder of the dominant estate may exercise this right. The location must be reasonable in either case. Fulcher v. Dierks Lumber & Coal Company, supra. Undesignated grants of rights of way may be termed “floating rights of way” until located and utilized but thereafter such easements become fixed.

The grantee of an easement or right of way has the right to determine the exact location of such easement if the grantor fails to do so. This right of the grantee is subject to the convenience and reasonableness of the dominant and servient estates. After the location is designated and used it cannot thereafter be redesignated at a different location without another grant. Therefore, the chancellor was clearly erroneous in determining that appellee had the right to relocate its right of way without an additional grant.

Appellee also argues appellant should be estopped from claiming the relief sought because he stood by and watched as appellee occupied his lands and installed a new pipeline. Appellant refused to grant a new easement, threatened to sue if appellee entered upon his lands and filed suit within a week after the new pipeline was installed on his property. There was no evidence at all which indicated appellant intended to mislead the appellee as must be found before the doctrine of estoppel can be applied as a defense. Coristo v. Twin City Bank, 257 Ark. 554, 520 S.W.2d 218 (1975). The appellee was not entitled to rely on estoppel in this case.

We treat the decree of the chancellor as an appealable order pursuant to ARAP, Rule 2 (a) 2. The decree of the chancellor in effect prevented appellant from obtaining a judgment on his complaint for ejectment. We have not found any authority for a circuit court to relegate the matter of construction of a document to the chancery courts. In the normal course of events once a chancery court acquires jurisdiction of a case it retains jurisdiction for all purposes. A judgment or decree is tested by substance rather than form. McNeece v. Raines, 182 Ark. 1091, 34 S.W.2d 225 (1931). On remand the chancellor will retain jurisdiction and proceed in a manner consistent with this opinion.

Reversed and remanded.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    Mary Alice RICHARDSON v. David RICHARDSON
    83-155
    659 S.W.2d 510
    Supreme Court of Arkansas
    Opinion delivered October 31, 1983

      Vickery ir Jones, P.A., by: lan W. Vickery, for appellant and cross-appellee.

      Shackleford, Shackleford ir Phillips, P.A., for appellee and cross-appellant.
   Robert H. Dudley, Justice.

The Court of Appeals certified this divorce action to this Court because the case requires an interpretation of Ark. Stat. Ann. § 34-1214 (Supp. 1983). The appellant raises nine points of appeal and the cross-appellant raises three points. The major issue is whether an unexercised stock option is marital property. We hold that it is. The points of appeal are treated in the order raised.

The appellant contends that thirty acres acquired in her name during the marriage should be excluded from the classification of marital property because it was received as a gift. See Ark. Stat. Ann. § 34-1214 (B) (1) (Supp. 1983). The chancellor made a finding of fact that the acreage was held as marital property. Findings of fact by a chancellor will not be set aside unless they are clearly against the preponderance of the evidence. ARCP Rule 52, Ark. Stat. Ann. Vol. 3A (Repl. 1979); Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981). Here the deed of conveyance to appellant recites that a consideration was paid and appellant admits the consideration was $9,000. She contends that the $9,000 purchase price was a gift from her mother and should have been traced. See Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983). However, after acquiring title to the land, she sold the timber for $6,000 and handed those proceeds over to her mother. It is unreasonable to believe that appellant’s mother made a gift to her of $9,000 and appellant turned around and made a gift of $6,000 to her mother. It is reasonable to treat the transaction as a loan and partial repayment. We cannot say the chancellor was clearly erroneous in treating the transaction as a loan and holding the acreage was marital property.

Appellant and her mother acknowledged they were partners in the Paramount Beauty School in El Dorado. The building, equipment, fixtures, and all personal property used in the partnership are the separate property of appellant’s mother. Appellant contends that she owns no property but instead has only a right to half the earnings of the partnership and the chancellor erred by treating the partnership interest as marital property.

The chancellor was correct. Under the Uniform Partnership Act appellant’s rights in specific assets are those of a tenant in partnership. Ark. Stat. Ann. § 65-125 (Repl. 1980); Riegler v. Riegler, 243 Ark. 113, 419 S.W.2d 311 (1967). The partnership assets are items such as accounts receivable, cash, bank accounts, and good will. The appellant’s interest in the partnership was acquired during the marriage and constitutes marital property.

Appellant next contends the trial court committed error in finding the value of her interest in the partnership to be $16,000. The 1981 partnership tax return reflected total ordinary income of $ 17,206 with each partner having $8,603 in income from the partnership. The 1980 partnership tax return showed total ordinary income of $11,736 with each partner earning $5,868. The appellee testified that he was experienced in evaluating businesses and that the value of a business is determined by using a multiple of average earnings. He apparently used a multiple of approximately five times average earnings as he appraised the value of appellant’s partnership at $42,500. There was no other evidence concerning the value of the partnership. The chancellor used a much smaller multiple than that suggested by appellee and valued appellant’s interest in the partnership at $16,000. We cannot say his finding was clearly erroneous.

Appellant contends that the chancellor abused his discretion in refusing to award child support. We find no error. The son for whom support is sought is twenty-six years old and is not shown to be disabled. The daughter for whom support is sought is married. Similarly we find no abuse of the chancellor’s discretion in refusing to award alimony. At the date of the trial appellant had a net worth of $106,282.50 and the division of only three of the items of marital property will constitute an award to her in excess of an additional $120,000. Those three items are the Murphy Oil stock, the Murphy Oil thrift plan and the farm. This does not include the division of the remainder of the marital assets. Appellant has earnings from the beauty school partnership as well as dividends. In the circumstances of this case it cannot be said the chancellor was clearly erroneous in denying the claim for alimony.

The chancellor awarded appellant one-half the value of appellee’s interest in the Murphy Oil thrift plan. If appellee withdraws money from the plan in order to pay one-half the value of the fund he will incur substantial income taxes. In such event the chancellor ordered that one-half the value be inclusive of appellee’s taxes. The appellant neither cites any authority nor makes a convincing argument in contending that the allowance for income tax, if incurred, is unfair. No error is shown on this point.

Appellant’s next two points are objections to the form of the final decree. These objections were not brought to the attention of the trial court and will not be considered for the first time on appeal. May v. Barg & Co., 276 Ark. 199, 633 S.W.2d 376 (1982).

Appellant contends that the chancellor committed error in awarding only $1,000 on her attorney’s fee. The trial court has considerable discretion in the allowance of an attorney’s fee in a divorce case. Ford v. Ford, 272 Ark. 506, 616 S.W.2d 3 (1981). The chancellor is in a better position to evaluate the services of counsel than is an appellate court and, absent an abuse of discretion, the chancellor’s fixing of an attorney’s fee will not be disturbed on appeal. Wiles v. Wiles, 246 Ark. 289, 437 S.W.2d 792 (1969). We cannot say that the chancellor abused his discretion in awarding a fee of $1,000. However, we do award appellant an additional $1,000 as attorney’s fee for services in this Court.

Cross-appellant holds stock options for the purchase of shares of common stock. He contends they are not marital property. A stock option is the right to buy a designated stock, if the holder of the option chooses, at any time within a specified period, at a determinable price, or to sell a designated stock within an agreed period at a determinable price. An option to buy stock is termed a “call,” an option to sell stock is labelled a “put,” and an option to do either is denominated a “straddle.” The terms of the option determine whether it is or is not transferable.

There is a recognized exchange for many transferable puts and calls. As a result, many of the transferable options have a value fixed daily in the marketplace just as does traded common stock. Non-transferable options cannot be traded on an exchange and their value must be arrived at in another manner. However, they constitute marital property just the same as traded options or traded common stock.

Here, cross-appellant held options to purchase 3,000 shares of the common stock of the Murphy Oil Corporation at a price of $13.71 per share. On the day the case was heard Murphy Oil Corporation’s stock was being traded at 22-1/2. Consequently, on the date of trial, the cross-appellant could have exercised the options for $41,130 and received Murphy Oil stock worth $67,500. The chancellor found that the value of the options was the difference between the cost of exercising them and the worth of the stock. He awarded cross-appellee one-half of that amount. We affirm. The options held by cross-appellant are a type of security which must be divided as marital property under the provisions of Ark. Stat: Ann. § 34-1214 (Supp. 1983). The division ordered was in compliance with Ark. Stat. Ann. § 34-1214 (A) (4) (Supp. 1983).

The chancellor found that each party should be liable for his or her separate debts. The cross-appellant contends that his bank debt, open accounts and tax liability should be divided equally. However, the cross-appellant has a high income while the cross-appellee has a modest income. The cross-appellant will be able to pay the debt from income without materially changing his style of life. The crossappellee could not pay the debts from her income. She would find it necessary to dispose of assets to pay part of the debt. Under the circumstances, we cannot say the ruling of the chancellor is clearly erroneous.

Affirmed on direct and cross-appeal.

Purtle and Hays, JJ., dissent.

John I. Purtle, Justice,

dissenting. The first point of disagreement with the majority opinion is the disposition of the 30 acres of land. This was part of a forty acre tract from which ten acres had been devised to the appellant by the will of her stepfather. Her mother then paid the other heirs for the remaining thirty acres and gave the land to the appellant with the request that she (the mother) be allowed to collect the proceeds from the first timber sale. The timber was sold and the proceeds were given to the mother. Neither appellant nor appellee paid for the land. It is obvious that this property was obtained by the appellant by will and gift. This exempts it from becoming marital property pursuant to Ark. Stat. Ann. § 34-1214 (B) (1) (Supp. 1983). By no stretch of the imagination can I find any legal or moral right for the appellee to obtain an interest in these lands.

Next, the majority erred in affirming the chancellor’s ruling giving an interest in the partnership to the appellee. The partnership is a paper creation and has no property, shares or anything of a tangible nature. A primary function is to reduce the income tax paid by appellant and her mother. Without the personal services of the appellant there would be absolutely nothing of value to anyone else. The building, equipment, fixtures and all personal property utilized by the partnership are owned by appellant’s mother. Granting appellee an interest in the partnership is like granting the wife of a lawyer an interest in his law firm. Neither appellant nor appellee paid any sum for an interest in the partnership. If it had any value it was a gift from the mother of appellant and therefore not marital property.

In spite of the fact that appellant is 55 years of age, has two of their four children still living in the home (which was ordered sold out from under her) and has an earned income of about $8,000 annually, as compared to appellee’s income in excess of $60,000, she was denied any alimony by the trial court and the majority of this court approved this unfair treatment. She is entitled to alimony until such time as conditions change. The appellant has not been afforded equity nor equality in my opinion. She is entitled to be treated with dignity and respect and should be allowed alimony in an amount sufficient to enable her to live in a manner fairly consistent with what she has been afforded during the 25 years she has lived with the appellee and cared for their children and their home.

I agree with appellee on the cross appeal. Unexercised stock options which cannot be pledged, mortgaged or assigned are not property acquired by anyone. Even if appellee exercised his options there is no guarantee that he will make a profit. In fact it could turn into a loss. Therefore, I am unable to speculate that these options are property acquired during the marriage. After this litigation is finished he may have a very good reason not to exercise the options as they must be paid for at the time the option is exercised. For the foregoing reasons I would modify the decree in accordance with this dissent.

Hays, J., joins in this dissent.