author: George Rose Smith, Justice. George Rose Smith, Justice,

text:
    Harvey WILLIAMS, Jr. v. STATE of Arkansas
    CR 82-102
    642 S.W.2d 887
    Supreme Court of Arkansas
    Opinion delivered December 13, 1982
    [Supplemental Opinion on Denial of Rehearing January 10, 1983.]

      Danny P. Rodgers and James C. Graves, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Williams was convicted of having committed capital felony murder on February 23, 1981, in that he fatally stabbed Sidney Riley after raping her. In appealing from the ensuing sentence to life imprisonment without parole Williams contends primarily (1) that the trial judge erred in finding his confession to have been voluntary without first requiring the State to produce all witnesses material to the issue of voluntariness and (2) that the confession and certain clothing and other articles seized by the police should have been excluded as the fruits of a warrantless arrest made without probable cause.

Testimony taken at the hearing on the motions to suppress is pertinent to both contentions. The murder occurred on February 23 in the living room of the victim’s home near Antoine, but was not discovered until two days later. Williams was living with his sister and her husband in the next house down the road, some 300 yards away. Because of that proximity Sheriff Baker, State Police Office Ursery, and Prosecuting Attorney Arnold went out to interview Williams at about 4:00 p.m. on February 26, the day after the victim’s body had been found at her home.

When the three men walked up to the house, Williams came across the yard to meet them. He recognized Arnold, who had represented him when he was convicted of manslaughter in 1967. Out of Williams’s hearing the officers commented on the resemblance between Williams’s toboggan cap and certain red fuzz found on a blanket under the victim’s body when the crime was discovered. Arnold told them to warn Williams of his rights and to check with the police laboratory at Little Rock about the red fuzz.

Officer Ursery warned Williams before he was questioned. Williams first said he had not known the victim, but he then said he had seen her working in her yard a few days earlier. The four men walked to the victim’s house, where the officers’ vehicle was parked. While the sheriff began checking with the laboratory, Officer Ursery again warned Williams of his rights. Williams said that on the earlier day he had walked up the road, had seen Ms. Riley working in her garden, and had carried to her some mail that he took from her mail box. He tried to explain that he was the brother of her neighbor, but she became frightened, ran into the house, and threatened to call the police. He followed her into the kitchen, but did not go beyond that point into the living room.

Officer Ursery then asked Williams if he would go to Hope and take a polygraph examination to show that he only went into the kitchen area. Williams said he would. Sheriff Baker and Officer Ursery then drove Williams to the state police office at Hope. There Ursery used a printed waiver to again warn Williams of his rights while they waited a few minutes for the polygraph examiner to arrive. When he got there Williams refused to take the test. Another state police officer, Finis Duvall, then told Williams they needed to take his clothes for examination. Williams said he would tell the officers what they wanted to know. After interrogation he signed a highly damaging statement in which he admitted having had intercourse with the victim and having caused her death. At the trial Officer Ursery testified that Williams had been in custody since they left the scene of the crime, but he was not told that he was under arrest until after he gave the statement.

Probable cause for an arrest existed when Sheriff Baker, Officer Ursery, and Williams left the scene to drive to Hope. Williams had first denied knowing the victim, but changed his story. His account of having removed mail from her mail box to take it to her was suspect, for such actions would hardly be performed with an innocent motive by a stranger. Williams admitted that the woman was frightened, that she ran to the house with a threat to call the police, and that he followed her into the house. His assertion that he stopped short of going into the living room could indicate guilty knowledge of where the crime occurred. Both officers attached significance to the red fuzz. The proof supplied the recognized elements of probable cause. See Sanders v. State, 259 Ark. 329, 334, 532 S.W.2d 752 (1976).

It was not essential, as the appellant argues, for the trial court to pinpoint the moment of arrest. The officers were not required to make an arrest when they first had probable cause to do so. State v. Coleman, 412 So.2d 532 (La., 1982). Although A.R.Cr.P. Rule 4.4 requires that the officer inform the arrested person that he is under arrest, such formal words are not essential to an arrest. Ark. Stat. Ann. § 43-412 (Repl. 1977); Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979); McDonald v. State, 253 Ark. 812, 491 S.W.2d 36 (1973). Sheriff Baker testified that Williams was arrested at the scene. Officer Ursery testified that Williams was under restraint continuously after they left the scene to go to Hope. The trial court could reasonably conclude that the officers, having probable cause, deferred the arrest to permit Williams to clear himself by a polygraph examination. When he refused to do so, the arrest existed in fact without a formal statement. Hence the seizure of the clothing and the taking of the statement followed a lawful arrest and were not tainted.

The court was wrong, however, in not requiring the State to produce all material witnesses to the confession or account for its failure to do so. At the suppression hearing it was shown by the State that Officers Ursery and Duvall were present when Williams gave his statement. They said that Williams had not asked for an attorney. Williams, however, then denied their assertions and testified that he also told Officer Reed, and perhaps Sheriff Baker as well, that he would not make a statement without a lawyer. Defense counsel, in asking that Reed and Baker be produced, cited our holding in Earl v. State, 272 Ark. 5, 612 S.W.2d 98(1981), where we said that the State fails to sustain its burden of proving voluntariness when it does not produce all the material witnesses or account for their absence. Under that decision and the prior cases that were cited, the error was prejudicial and requires a new trial. It is immaterial that Baker and Reed later testified at the trial that Williams did not ask for an attorney, for the statute requires the trial judge to determine voluntariness by hearing evidence out of the presence of the jury. Ark. Stat. Ann. § 43-2105.

The court properly refused to disqualify Arnold as the prosecutor merely because he had represented Williams when he was convicted in 1967. The motion to disqualify asserted that if the manslaughter conviction were used as an aggravating circumstance, Arnold might be in a position to use confidential information to the detriment of his former client. That possibility, however, was eliminated by Arnold’s assurance that he would only use the proof of the conviction. That was done; so there is no indication of prejudice.

Since the jury was apparently selected at random, there is no proof of a systematic exclusion of blacks. We need not speculate about the possible proof upon a retrial. The court properly refused to quash the jury panel merely because a clerical employee who assisted in preparing the jury list had not taken the oath required by Ark. Stat. Ann. § 39-205.1 (Supp. 1981). The statute is not mandatory, and no question about the integrity of the list has been shown. See Huckaby v. State, 262 Ark. 413,557 S.W.2d 875 (1977). Finally, we have repeatedly rejected the argument that a “death-qualified” jury gives rise to prejudicial error. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982).

Reversed and remanded.

Hickman, J., not participating.

Supplemental Opinion on Denial of Rehearing delivered January 10, 1983

George Rose Smith, Justice,

on rehearing. The State’s petition for rehearing is denied. The case of Hignite v. State, 265 Ark. 866, 581 S.W.2d 552 (1979), is not controlling, because there the issue was merely that of voluntariness in general, not the State’s failure to call all necessary witnesses to testify at the Denno hearing.

The appellant’s petition for rehearing is also denied. In response to his request for clarification of the opinion, we state that a second Denno hearing will be proper.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    ARBOR ACRES FARM, INC. v. Dale Lawrence BENEDICT et ux
    82-139
    642 S.W.2d 893
    Supreme Court of Arkansas
    Opinion delivered December 13, 1982

      Cypert & Roy, for appellant.

      Pearson, Woodruff & Evans, for appellees.
   Frank Holt, Justice.

This case arises from a land sale transaction in which Arbor Acres sold a parcel containing approximately fifty-four acres to the Benedicts. A loan was obtained and first mortgage granted to American Savings and Loan Association, which is not a party to this case. Arbor Acres took a second mortgage. Later, American Savings and Loan sued for foreclosure in chancery court, naming the Benedicts and Arbor Acres as defendants. Arbor Acres cross-claimed for default to foreclose on its second mortgage. The Benedicts cross-claimed against Arbor Acres, seeking both reformation and damages, alleging that Arbor Acres had fraudulently misrepresented the quantity of land being sold. Allegedly, 7.995 acres were omitted from the description of the land in the deed. The chancellor, sua sponte, dismissed the Benedicts’ cross-claim without prejudice. Arbor Acres purchased the land at the foreclosure sale and entered a satisfaction of the judgment against the Benedicts.

Shortly after the foreclosure, the Benedicts filed an action in circuit court to recover damages only on the same grounds they had asserted in their cross-claim, which the chancellor had dismissed without prejudice in the foreclosure action. Arbor Acres denied the allegations and also counterclaimed for reformation due to mutual mistake. Arbor Acres then moved for summary judgment on the theory that the compulsory counterclaim statute then in effect required the Benedicts to assert their claim in the foreclosure proceeding. The circuit court agreed and held that the Benedicts’ claim was barred by res judicata. On appeal, we reversed, holding that the Benedicts were not barred from asserting their claim due to res judicata and the compulsory counterclaim statute, since their cross-claim in the foreclosure action had been dismissed by the chancellor sua sponte and without prejudice. Benedict v. Arbor Acres Farm, 265 Ark. 574, 579 S.W.2d 605 (1979).

On remand Arbor Acres moved to have the case transferred to chancery court, where its counterclaim for reformation, an equitable remedy, could be heard. That motion was granted. Thereupon, the chancellor granted the Benedicts’ motion for judgment on the pleadings to the extent that Arbor Acres’ counterclaim for reformation was dismissed with prejudice. The chancellor held that Arbor Acres’ counterclaim was barred by res judicata, since it could have been filed in the foreclosure proceeding and that the parties had an adequate remedy at law. Accordingly, the chancellor ordered the case returned to circuit court for trial. Appeal is taken from that order.

As the parties have briefed it, the sole issue in this case is whether the chancellor correctly applied the doctrine of res judicata to these facts. However, we think the case is resolved by a more elementary consideration.

A basic rule is that a party seeking relief from a court of equity must show that he has no adequate remedy at law. Rodgers v. Easterling, 270 Ark. 255, 603 S.W.2d 884 (1980); Cummins v. Bentley, 5 Ark. 9 (1843). The Benedicts have sued for damages. They do not claim any interest in the 7.995 acres omitted from the deed. Arbor Acres has both legal title and possession to that 7.995 acres. The Benedicts must prove that the omission in the description in the deed was intentional in order to succeed in their claim of fraud. McAllister v. Forrest City St. Imp. Dist., 274 Ark. 372, 626 S.W.2d 194 (1982); and Hembey v. Cornelius, 182 Ark. 417, 31 S.W.2d 539 (1930). Here, as indicated, the chancellor dismissed Arbor Acres’ counterclaim for reformation and ordered the case re-transferred to circuit court for trial, observing that an adequate remedy existed there. Nothing in the order prevents Arbor Acres from controverting at trial the allegation that the omission was made intentionally and introducing evidence that the alleged omission was merely a mistake. The same proof that might prevail in chancery court in Arbor Acres’ counterclaim for reformation could prevail in circuit court in its defense against the Benedicts’ action for damages due to alleged fraud. If it prevails in circuit court, Arbor Acres will continue to have possession and legal title to the 7.995 acres, and neither will it be required to pay any damages. Any claim to the 7.995 acres that the Benedicts might assert will be barred by or merged into the judgment in this action for damages. Restatement, Second, Judgments §§ 18, 19 and 24 (1982). Arbor Acres has received in full all the indebtedness owed it by the Benedicts as indicated by Arbor Acres ’ satisfaction of j udgmen t and i ts full and complete release. Therefore, reformation of the deed, as the chancellor observed, “would be a vain and useless act” by that court. For all practical purposes, Arbor Acres will be in the same position by prevailing in circuit court as it would be by prevailing in a court of equity. Consequently, it has, as the chancellor held, a complete and adequate remedy at law. Equity has no jurisdiction when there is, as here, a complete and adequate remedy at law. Rodgers v. Easterling, supra.

Accordingly, we affirm the chancellor. As ordered by him, the case will be returned to circuit court for trial on the Benedicts’ action for damages based upon the alleged fraudulent transaction.

Affirmed.


author: Frank Holt, Justice. Darrell Hickman, Justice,

text:
    Willard NOLEN, Jr. v. STATE of Arkansas
    CR 82-146
    643 S.W.2d 257
    Supreme Court of Arkansas
    Opinion delivered December 13, 1982

      Thomas G. Montgomery, Crittenden County Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was driving an automobile when it collided head on with another vehicle, killing a passenger and seriously injuring the driver of that car. The appellant was convicted by a jury of manslaughter (Ark. Stat. Ann. § 41-1504 [Repl. 1977]) and battery in the first degree. (Ark. Stat. Ann. § 41-1601 (1) (c) [Repl. 1977]). He was sentenced to five years on each offense with the sentences to run consecutively. The appeal was certified to this court pursuant to Rule 29 (1) (c) of the Rules of the Supreme Court, because it involves the construction of an act of the General Assembly and rules governing criminal trials in circuit court.

The appellant relies upon two points for reversal, neither of which has merit. First, he contends that the trial court erred in denying his motion for mistrial. Two days before the trial the appellant moved in limine to prevent the state from introducing evidence of or making any reference to his seven prior convictions for driving while intoxicated. The trial court granted the motion. During his opening statements to the jury, appellant’s counsel stated that there would be testimony that the appellant had consumed only a small amount of alcohol on the day of the collision; that the collision occurred because he momentarily took his eyes off the road when he reached down to pick up a radio or cassette player that had fallen from the dash to the floor of his car; when he looked up he was at the scene of impact; and when he hit his brakes, they grabbed, causing him to veer to the left into the path of the victims’ car. Later in the trial, after several of the state’s witnesses had testified as to the high rate of speed of appellant’s car and his intoxicated condition, the trial court announced that if the appellant’s proof developed as was outlined in the opening statement, which indicated that the collision was a “pure accident”, it would change its in limine ruling and, if appellant testified, permit cross-examination under Rule 404 (b) about his previous DWI convictions. The appellant then moved for a mistrial, which the court denied.

We first note that appellant’s trial preceded our ruling in State v. Vowell, 276 Ark. 258, 634 S.W.2d 118(1982), where we held that it was not error to allow the state to cross-examine, pursuant to Ark. Stat. Ann. § 28-1001, Rule 404 (b) (Repl. 1979), an almost identically situated defendant with respect to his prior DWI convictions. The issue here is whether the trial court committed reversible error in changing his in limine ruling during the trial. The only prejudice claimed by the appellant is that his attorney, in reliance upon the court’s in limine ruling, told the jury in his opening statement what it could expect to hear from the appellant at trial. Because of the court’s reversal of his in limine ruling, the appellant exercised his right not to testify and thus was precluded from producing the evidence that the jury was told it would hear. Therefore, he claims he was entitled to a mistrial.

We now examine the in limine oral motion. The state took the position that the seven previous DWI convictions were relevant and admissible evidence on cross-examination. Appellant’s counsel took the position that the appellant did not deny that he was drinking and that his defense would be that he was not drunk and that it was a “pure accident”. In urging the court to grant his motion to disallow any reference to his previous convictions, appellant’s counsel stated:

.... [T]he mere fact that he is DWI doesn’t necessarily mean that caused the accident. See, he might have been hit from behind and pushed into somebody, you know. There are a lot of different fact situations. What I am saying is, what if he hadn’t had a drop to drink in this case?

In effect, counsel was arguing to the court that the accident could be merely the result of negligence or some cause other than intoxication.

We have held that a motion in limine, a threshold motion, should be precise and definite as to the subject matter sought to be prohibited. Further, whenever it is somewhat broad, it results in confusion and is necessarily subject to a later judgment and interpretation by the court. Smith v. State, 273 Ark. 47, 616 S.W.2d 14 (1981); and Ark. State Hwy. Comm’n v. Pulaski Inv. Co., 272 Ark. 389, 614 S.W.2d 675 (1981). Here, in our view, the court, after hearing testimony bearing on the cause of the accident, committed no prejudicial error when he altered his in limine order and advised the appellant that if he testified he was subject to cross-examination with respect to his previous DWI convictions. It is not uncommon for an attorney to outline in an opening statement, as here, “what we anticipate the testimony is going to be” and then, in view of developments in the trial, decide not to produce that evidence. We do not reverse for nonprejudicial errors. State v. Vowell, supra; Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977). No prejudicial error is demonstrated here. Additionally, a mistrial is within the sound discretion of the trial court, and the decision will not be reversed unless there is a clear showing of abuse. Robinson v. State, 275 Ark. 473, 631 S.W.2d 294 (1982). Here, we cannot say that the trial court abused his discretion.

The appellant next contends that the evidence was insufficient to sustain a conviction of battery in the first degree. He does not contest the sufficiency of the evidence with respect to the manslaughter conviction. His argument is that the conviction for manslaughter requires only a finding that he was guilty of “reckless” conduct, as § 41-1504 provides, but that battery in the first degree requires an intent to inflict serious physical injury. He cites Bolden v. State, 267 Ark. 504, 593 S.W.2d 156 (1980); and Golden v. State, 265 Ark. 99, 576 S.W.2d 955 (1979). In both of those cases the state’s argument was that the defendant had purposefully beaten another person. § 41-1601 (1) (a). The relevant subsection of the battery statute invoked here is § 41-1601 (1) (c), which provides thata person commits battery in the first degree if “he causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life ....” In any event, either subsection of § 41-1601 (1) requires a more culpable mental state than recklessness. See Ark. Stat. Ann. § 41-203 (Repl. 1977). However, the mere fact that the jury convicted the appellant of manslaughter, which requires proof of reckless conduct, does not require a conclusion that the jury could not also have found him guilty of first degree battery, with respect to the survivor of the collision, an offense that requires a more culpable mental state.

In State v. Vowell, supra, we held that the phrase “under circumstances manifesting extreme indifference to the value of human life” is in “the nature of a culpable mental state .... and therefore akin to ‘intent’.” Further, prior DWI convictions were admissible on cross-examination pursuant to Rule 404 (b) of the Uniform Rules of Evidence ‘‘to prove the warning quality of the other conviction and to infer that the [defendant] must have arrived at a mental state inconsistent with mistake and consistent with the culpable mental state of causing serious physical injury ‘under circumstances manifesting extreme indifference to the value of human life’.” Compare Holder v. Fraser, Judge, 215 Ark. 67, 219 S.W.2d 625 (1949), where we said:

Whether particular conduct is cautious or reckless depends upon its attendant circumstances. To drive a car at sixty miles an hour may demonstrate extreme caution upon a race-track and yet may be almost as culpable as murder if done in a crowded city street. Here petitioner is charged with driving recklessly, willfully and wantonly in such circumstances that three people were killed. It is stated that he was under the influence of intoxicants at the time. On the basis of these allegations we must treat petitioner’s conduct as being equivalent to a conscious and deliberate disregard for the safety of others. Such behavior borders so closely upon that motivated by actual intent that we have no hesitancy in saying that the same reasoning is applicable. Petitioner risked a violation of the statute as to each person whose life he imperiled and may be held separately responsible for each death proximately resulting from the prohibited conduct.

Here, there was evidence that appellant was driving at a high rate of speed on the wrong side of the road in an intoxicated condition when he collided head on with another vehicle, killing one person and seriously injuring another. The vehicle he struck traveled backward 65 feet from the point of impact and his vehicle continued forward 49 feet. The evidence, when viewed most favorably to the appellee, as we must do on appeal, is amply substantial to support the jury’s finding that the appellant caused serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life.

Affirmed.

Hickman and Purtle, JJ., dissent.

Darrell Hickman, Justice,

dissenting. I dissent for two reasons. First, to preserve my protest to the unconstitutionality of the offense titled first degree battery. See Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977). Second, I dissent to point out that the prior convictions for DWI cannot be admitted “on cross-examination” purusant to Ark. Stat. Ann. § 28-1001, Rule 404 (b) (Repl. 1979). That rule, if available at all, means such evidence is admissible in the State’s case in chief. I agreed in Vowell it was admissible only because Vowell testified that the vehicular collision was an accident, and for no other reason. See Vowell v. State, 276 Ark. 258, 634 S.W.2d 118 (1982).

Purtle, J., joins in this dissent.


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

text:
    Robert SELPH et al v. QUAPAW VOCATIONAL TECHNICAL SCHOOL et al
    82-142
    643 S.W.2d 534
    Supreme Court of Arkansas
    Opinion delivered December 13, 1982
    [Rehearing denied January 24, 1983.]

      Virginia Atkinson and Mark Justin Raíble, by: Mark Justin Raíble, for appellant Selph.

      Laser, Sharp, Haley, Young & Huckabay, by: Gregory M. Hopkins, for appellant Arkansas Merit System Board.

      Steve Clark, Atty. Gen., by: E. Jeffery Story and Nelwyn Davis, Asst. Attys. Gen., for appellees.
   Darrell Hickman, Justice.

The issue is whether the State Merit Council had the authority to order the reinstatement of Robert Selph, an employee of the Department of Education. Selph argues the appellees had no right to appeal from the Council’s decision. The trial court set aside the Council’s order and we affirm the decision.

Robert Selph was fired on December 11, 1980, from his job as food service instructor at the Quapaw Vocational Technical School in Garland County, Arkansas. He was accused of stealing meat from the food service center. Selph elected to protest his firing through the grievance procedure of the Department of Education. A grievance committee met with Selph and decided he could remain on leave without pay through December 15, 1980, while he pursued his grievance. On January 7, 1981, a hearing was held before Shirley Stancil, the Department of Education’s personnel officer; after hearing testimony she upheld Selph’s dismissal. An Ad Hoc Grievance Committee reviewed the personnel officer’s report and recommended to the director of the Board of Education that Selph’s termination be upheld. The director took the committee’s recommendation and upheld Selph’s dismissal on February 27, 1981.

Selph had a right to one more hearing before the State Employee’s Grievance Committee, but instead of pursuing that right he filed a petition for judicial review in the Pulaski County Circuit Court. Five months later that court entered an order transferring the case to the Arkansas Merit Council referring to Act 693 of 1981. This order was entered September 8, 1981. A hearing before the Merit Council was held November 2, 1981, and the Council ordered Selph’s reinstatement.

The appellees, the Vo-Tech School and the Department of Education, filed an action in the Garland Circuit Court to prevent the execution of the Merit Council’s order or to have it declared void. The action sought court review either by way of appeal or certiorari. Selph objected to the court’s jurisdiction and on appeal essentially relies on the principle that there can be no appeal from an order discharging or reinstating a state employee. Arkansas Livestock and Poultry Commission v. House, 276 Ark. 326, 634 S.W.2d 388 (1982).

The trial court accepted the case and held that there was no statute or rule that authorized the Merit Council to act in Selph’s case. The court also held that Selph had waived any right he may have had to review of his case by the Merit Council because Selph elected to seek relief through the Department of Education’s grievance procedures and failed to exhaust his remedies under that system.

We agree the Merit Council had no authority to order Selph’s reinstatement. The Merit Council had no authority over the matter at all at the time Selph was fired or any time during his search for relief. Therefore, the Council could not act at all in Selph’s case. Selph was fired on the 11th day of December, 1980. The final step Selph chose to take in the grievance procedure was exhausted February 27, 1981. He had five days to appeal from that decision to the State Employee’s Grievance Committee. Rather than do so he waited twenty-seven days and then filed a petition for review in the Circuit Court of Pulaski County. At that time Act 693 of 1981 was not in effect. In fact, it did not become effective until June 17,1981, some two months later. We do not reach the question of the import of Act 693.

The appellants’ reliance on the case of Arkansas Livestock and Poultry Commission v. House, supra, is misplaced. In House, we held an employee had no right to appeal from a department’s order firing him. We do not have an attempt to appeal from an adverse ruling of an officer or board authorized to discharge employees. The question here is one of a board that has no authority in a matter and yet makes a decision. More specifically the question is whether such an order can be declared void. In this case one state agency sought to prevent another from acting beyond its authority. The state agency aggrieved has a right by certiorari to seek review of such a matter. Dixie Downs, Inc. v. Arkansas Racing Commission, 219 Ark. 356, 242 S.W.2d 132 (1951); In re Goldsmith, 87 Ark. 519, 113 S.W. 799 (1908); Adams v. Cockrill, 227 Ark. 348, 298 S.W.2d 322 (1957).

Affirmed.

Purtle, ]., dissents.

John I. Purtle, Justice, dissenting.

I am puzzled by the majority opinion in this case. It purports to rely on the case of Arkansas Livestock and Poultry Commission v. House, 276 Ark. 326, 634 S.W.2d 388 (1982), wherein we stated: “On appeal we reverse, holding the discharge of an employee to be an administrative decision and the circuit court is without jurisdiction to review those decisions.” The majority proceeds not only to reverse the decision of an administrative agency in reinstating an employee, but also to approve the circuit court’s action of reviewing and reversing the administrative decision.

So far as I am concerned, the act of reinstating an administrative employee is no different than an act terminating an administrative employee. I do not believe the present opinion is in harmony with our holding in Arkansas Livestock and Poultry Commission v. House, supra, wherein we stated:

It seems too obvious for serious argument that the Administrative Procedure Act, enacted in 1967, was never designed nor intended to create supervisory responsibility by the judicial branch of state government over the day-to-day actions of the executive branch, including the hiring or firing of personnel... It hardly need be said that firing employees is clearly an administrative act and not a matter that involves the quasi judicial function of an agency. If firing is subject to judicial review then we can think of no logical reason why hiring should not be also. And if hiring is, it follows that promotion would also come under our purview, and so on and so on.

Therefore, relying upon Arkansas Livestock and Poultry Commission v. House, supra, I would hold that the administrative function of hiring and firing or promoting and demoting administrative employees is not subject to judicial review. The judicial branch of government has no business meddling in the administrative branch’s affairs.

Additionally, I would reprimand the attorney for the state for including in appellees’ brief matters which we had previously determined should not be included because they were not a part of the record.


author: John I. Purtle, Justice.

text:
    Stephen HARPER and Stanley HARPER v. WHEATLEY IMPLEMENT COMPANY, INC.
    82-145
    643 S.W.2d 537
    Supreme Court of Arkansas
    Opinion delivered December 13, 1982
    [Rehearing denied January 17, 1983.]

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

      James D. Sprott, for appellee.
   John I. Purtle, Justice.

This is an appeal from the Faulkner County Circuit Court wherein the court dismissed appellants’ counterclaim, refused to allow the pleadings to be amended, refused to allow evidence on certain elements of damages and entered a judgment in favor of the appellee. On appeal it is argued: (1) the trial court erred in denying appellants’ motion for directed verdict; (2) the trial court erred in precluding appellants from presenting evidence of formation and execution of the original contract; (3) the trial court erred in refusing to allow appellants to present evidence of consequential damges; (4) the trial court erred in awarding damages to appellee and finding the resale of the secured items was commercially reasonable; and, (5) the trial court erred in awarding attorney’s fees. We reject the first three arguments, accept a portion of the fourth and grant the fifth listed argument because attorney’s fees are not recoverable in this case.

In March of 1977 the appellants purchased a tractor, disc and grain cart from Nash Implement Company. Nash subsequently was taken over by Wheatley Implement Company. A financing statement and security agreement were executed in connection with the purchase of this equipment, the subject of this lawsuit. Nash sold the papers on this transaction to White Motor Credit Corporation. The assignment was with recourse. The appellants failed to make the annual payment due in February of 1978. In September of the same year White Motor Credit Corporation filed replevin to recover the equipment and to obtain a deficiency judgment. The appellants answered, objected to delivery of the chattels and denied that White was the proper party in interest. They alleged the implement company was the real party in interest. Appellants (then defendants) filed an amended answer and third-party complaint against Nash Implement Company (now Wheatley Implement Company). The third-party complaint alleged fraud in the inducement and execution of the contract, alteration of the contract, breach of warranty and other grounds. Wheatley filed ah answer and counterclaim against appellants. On February 12,1981, Wheatley took the deposition of appellant Stephen Harper. Some questions were not answered at that time and appellants’ attorney agreed to furnish additional information at a later date.

Wheatley propounded interrogatories to appellants on June 3,1981 and later filed an amended answer wherein they asserted waiver. White then moved to dismiss due to the fact that they were in bankruptcy. On July 20, 1981, Wheatley filed a motion to compel discovery. There was no response from the appellants. On July 27, 1981, a conference call was arranged between the trial judge and all the parties to the action. At this time the appellants mentioned that they were claiming the right to rescind the contract. July 28, 1981, before commencement of the trial, the court granted White’s motion to dismiss and specifically precluded defendants from putting on proof of consequential damages resulting from breach of warranty, fraud and from their failure to produce evidence requested in discovery. The court also precluded appellants from offering evidence on the formation of the contract. Thus the case went to trial with appellants and Wheatley being the only parties to the action. The only issue considered by the court was the commercial reasonableness of the resale of the equipment.

At trial, the proof indicated that the total balance due on the equipment was $23,543. The court allowed $568.80 attorney’s fees incurred by White at the time of the repossession, and found a deficiency, after sale of the chattels, in the amount of $7,561.80. The court allowed an additional attorney’s fee of $894.81, plus costs in the amount of $29.

The first point argued by appellants is that the court erroneously failed to grant a verdict in their favor based on the failure of proof that Wheatley was the real party in interest. Appellants’ pleadings alleged that Wheatley was the real party in interest and there were no amendments to allege that White was the real party in interest. The record contains no documentary proof that Wheatley assigned the . debt to White or that White reassigned it to Wheatley. The court allowed White to be dismissed from the proceedings without objection. The facts indicate that Wheatley took physical repossession of the collateral and subsequently sold it without advertising. In view of the fact that appellants insisted all along that Wheatley was the real party in interest, we do not think they were prejudiced by the court allowing White to be dismissed from the action.

The trial court refused to allow appellants to present evidence concerning the formation and execution of the contract. From the record it is not entirely clear why the court would not hear this evidence. The court did state that the elements of the claim against the appellee would not be allowed because the appellants failed to supply answers to questions and interrogatories. The court held that ARCP Rule 8 required the parties to clearly set forth the relief to which they believed they were entitled. The court also held that fair rental values could be claimed by the vendor in this case. It was further stated that since appellee was not prepared to go forward with the rental value witnesses, the court would dismiss the appellants’ cross-complaint. Appellants’ attorney then inquired what proof he would be allowed to put on regarding claims of defective condition of equipment, unauthorized remaking of the contract and proof of fraudulent misrepresentations. The court stated that all such claims would go out the window.

Appellants first failed to complete the answers to the questions presented on deposition of appellant Stephen Harper. Also, the appellants failed to answer the interrogatories of June 3,1981. A motion to compel discovery was filed on July 22, 1981. There was no response or request for extension of time made by appellee. The court took no action prior to the date of the trial at which time the appellants’ pleadings were struck. ARCP Rule 37 (d) states:

If a party... fails... (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories ... the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under (A), (B) and (C) of subdivision (b) (2) of this rule.

The sanctions stated in subparagraphs (B) and (C) of ARCP Rule 37 (b) (2) provide:

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

In view of the provisions of the foregoing rules the trial court had the discretion under the circumstances of this case to take the action it did in striking the appellants’ pleadings relating to the formation of the contract and consequential damages. This extraordinary remedy should be used sparingly and only when other measures fail because of the inherent danger of prejudice.

Appellants insist it was error for the trial court to preclude them from presenting evidence of consequential damages resulting from alleged breaches of warranties and fraudulent misrepresentation. This argument is addressed in the preceding section of this opinion. As to this argument the court made the following statement:

In the depositions taken in February, 1981, the Harpers failed to answer certain questions and promised to furnish information and answers to those questions and they have failed, refused, or neglected to do so until this present time.
That as a result of that, in the telephone conversation held the day before the trial, their cross-complaint has related to the answers that they failed to give and supply would not be allowed on the trial of the case set for today.

Appellants insist they did not fail to answer any question at the deposition. While this is true, they did promise to present certain requested material which was not available at the time of the depositions. This material was never furnished. Additionally, the appellants failed to answer the interrogatories which were submitted to them well in advance of the trial. Among the interrogatories were those requesting knowledge about the alleged breaches of contract and fraudulent acts. Also, the interrogatories requested the names of witnesses to be called. The interrogatories were relevant to the claim for incidental damages and the failure to furnish them or offer a reason why they were not furnished justified the court in striking this particular claim.

The fourth argument presented by the appellants is that the trial court erred in finding that the resale of the chattels was commercially reasonable. It is not seriously disputed that the appellee did not give notice of the sale of these repossessed items of property. The real issue on this point is whether the appellants were given proper credit for the proceeds of the sale. As to this particular point we must decide whether the appellants were given all the credits to which they were entitled or would have been entitled had the private sale been conducted according to law. Universal C.I.T. v. Rone, 248 Ark. 665, 453 S.W.2d 37 (1970).

The proof offered on the issue of commercial reasonableness of this sale was presented by Jerry Van, an employee of White Motor Credit Corporation; Verlon Spencer, manager of Wheatley Implement Company; and Ernest Loewer, farmer, and president of Wheatley Implement Company. It was Mr. Van’s opinion that the tractor was worth between $15,000 and $16,000. He stated that he had recieved a bid of $12,000 which he considered ridiculous. This witness professed to have no knowledge of the actual physical condition of the tractor at the time of the sale to another White dealer in Oklahoma. Mr. Spencer stated he tried to sell the Harper vehicle and talked to three different people about it. He received the bid of $12,000 from one of these people and he considered the price inadequate. He did express the opinion that the price ultimately received was the top price. He also stated that the grain cart was rusted out and was offered for sale for $300. He had no knowledge of the actual sale. The disc was still on hand, and he thought it had a value of $1,000. Witness Loewer testified that he did not know when the grain cart was sold but they had to do repair on it because it was rusted out. According to him, $300 was spent on repair and the cart sold for $700, leaving a net of $400 for the cart. Witness Loewer stated that he did not take part in the day-today operations of his company although he tried to keep up with the values of White equipment. He had no knowledge as to the value of the tractor when sold in September of 1979.

It was the duty of the creditor to prove the amount that should have been obtained had the sale been conducted according to the law. Universal C.I.T. v. Rone, supra. In the present case the ruling of the court prevented the appellants from introducing evidence of the commercially reasonable value of the chattels. The Uniform Commercial Code states that the fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. Ark. Stat. Ann. § 85-9-507 (2) (Supp. 1981). The debtor has a right under the code to recover from the secured party any loss caused by failure of the secured party to comply with the provisions of the code. Ark. Stat. Ann. § 85-9-207 (3) (Add. 1961).

In view of the fact that the debtor was prevented from presenting evidence of the commercially reasonable value of the equipment at the time of the sale, we think it was prejudicial. There is no doubt that the secured party is not absolutely required to proceed by public sale. Carter v. Ryburn Ford Sales, Inc., 248 Ark. 236, 451 S.W.2d 199 (1970). However, when the sale is conducted in a manner not in accordance with the provisions of the code, the secured party does so at his own risk. In any event, the secured party would be entitled to keep the proceeds received as a result of the sale even though they were inadequate. However, under such condition, the debtor would not owe the difference between the price received and the commercially reasonable value of the property. The only evidence of the value of the tractor was by the employee who repossessed the tractor for White. We think this is insufficient.

Finally, appellant argues that the court erred in allowing attorney’s fees. We agree with this argument and hold that the court erred in allowing attorney’s fees. In Brady v. Alken, Inc., 273 Ark. 147, 617 S.W.2d 358 (1981), we held that it was the settled law in Arkansas that attorney’s fees are allowed only by statute. The statute in question here (Ark. Stat. Ann. § 68-919 [Repl. 1979]) provides for attorney’s fees only on promissory notes.

The contract and security agreement, in fine print on the back side of the contract, allowed attorney’s fees to the “extent permitted by law.” The Uniform Commercial Code provides for payment of reasonable attorney’s fees in cases “not prohibited by law.” It is obvious that the code attempted to allow attorney’s fees in those cases where it was not prohibited by law which standard is substantially different from allowing attorney’s fees to the extent permitted by law. We have previously held that attorney’s fees are not allowed except when expressly provided for by statute. Attorney’s fees were disallowed in an action based on breach of contract in the case of Romer v. Leyner, 224 Ark. 884, 277 S.W.2d 66 (1955). In Romer, it was stated: “In a suit of this kind there is no provision.under the statutes or decisions of this state to allow attorney fees or miscellaneous expenses as an element of damages.” In Romer, we quoted with approval language from White River, Lonoke & Western Ry. Co. v. Star Ranch & Land Co., 77 Ark. 128, 91 S.W. 14 (1905), which said: “Attorney’s fees are not ordinarily held to be an element of damages which may be recovered for breaches of contract.” We further quoted from American Exchange Trust Company v. Trumann Special School District, 183 Ark. 1041, 40 S.W.2d 770 (1931), as follows: “Attorney’s fees cannot be allowed as costs in suits, except as provided by statute, the same being regarded as a provision for a penalty and not to be enforced in the State courts.” We followed the reasoning in these two cases in Brady v. Alken, Inc., supra. In Brady, we held that in the absence of a statute allowing attorney’s fees it was error to allow such fees.

Since the trial court erred in prohibiting the appellant from producing evidence as to the commercial reasonableness of the sale of the property and in awarding an attorney’s fee, we must reverse and remand for a new trial.

Reversed and remanded.


text:
    Elizabeth MOBLEY v. ESTATE OF Parker PARKER, Deceased
    82-150
    642 S.W.2d 883
    Supreme Court of Arkansas
    Opinion delivered December 13, 1982

      John T. Harmon and Mobley & Smith, for appellant.

      Davidson, Horne, Hollingsworth, Arnold & Grobmyer, by: Cyril Hollingsworth, for appellee.
   John I. Purtle, Justice.

The Probate Court of Pope County, Arkansas denied the petition of appellant to bar the dower interest of the widow of Parker Parker, deceased. On appeal it is argued that the trial court improperly allowed a dower interest to the widow pursuant to statutes which had been declared unconstitutional. It is our opinion that the trial court correctly and timely interpreted the law as applied to the facts in this case.

Parker Parker died on November 6, 1976. The widow attempted to probate a will which was declared invalid by the trial court. The trial court’s decision was affirmed by this court on February 12, 1979 in Parker v. Mobley, 264 Ark. 805, 577 S.W.2d 583 (1979). Subsequently, the widow, acting as a co-administratrix of the estate, disposed of some of the property and sought an order of partial distribution. At a hearing on this action the attorney for the appellant obj ected to the amount of fees being allowed to the widow. Appellant’s attorney at one point stated:

I think the court should take into account the fact she will receive a dower interest in the estate. She will receive, if the court grants her petition, the maximum allowed under the statute, and that in addition she is asking the court to allow her another Ten Thousand Dollars ($10,000.00) more or less ...

On November 10, 1980, the court approved the partial distribution of assets and the widow was given the sum of $19,672.76 as dower interest on this particular transaction. The widow was not specifically awarded a dower interest in the estate by the heirs nor did she petition for same herself.

When this case was before us the first time, the present appellant was the appellee and claimed that her father died intestate. We upheld her contention on rehearing. However, on February 23,1981, this court handed down the opinion of Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), wherein we declared the gender based dower statutes unconstitutional. Shortly thereafter, appellant filed her petition seeking to bar the widow from receiving a dower interest in the Parker estate.

The opinions of Stokes v. Stokes, supra, and Hess v. Wims, Ex’x., 272 Ark. 43, 613 S.W.2d 85 (1981), were discussed by this court in the case of Hall v. Hall, Ex’r., 274 Ark. 266, 623 S.W.2d 833 (1981). In Hall, we held that a constitutional decision such as Stokes or Hess has never been completely retroactive. In Hall, we stated that a widow who had received her statutory dower in earlier years could not be stripped of her estate at a later time because the statutes under which she had been awarded her estate had been declared unconstitutional. We agree that Stokes and Hess are not to be given retroactive effect in the present case.

Had there been no activity in this case between the time of our decision of February 19, 1979, and the institution of the present suit, our holding may have been different. However, the facts of the present case indicate that the widow and heirs of Parker Parker treated the dower interest as having been vested. The trial court found that the attorney for the appellant expressly recognized the widow’s dower interest in the hearing of November 10,1980. Therefore, we are unable to say that the holding of the trial court was clearly erroneous. It appears from the record that the trial court properly applied the principle of estoppel against the appellant. It is logical that the appellant would have asserted an objection against granting the widow her dower interest in a partial distribution of the estate if there had been an intention to object. We have held that the principle of estoppel applies when a person deliberately does an act and another person, with the right to do so, relied and acted upon this action. Gambill v. Wilson, 211 Ark. 733, 202 S.W.2d 185 (1947). It is true that a party claiming estoppel must prove that he has relied, in good faith to his detriment, on the conduct of the party against whom the estoppel is asserted. Christmas v. Raley, 260 Ark. 150, 539 S.W.2d 405 (1976). Also, see Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980). One may waive a right when, with full knowledge of material facts, he does something which is inconsistent with the right or his intention to rely upon that right. Moseley v. State, 256 Ark. 716, 510 S.W.2d 298 (1974). In Continental Insurance Co. v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978), we quoted with approval from the case of Sovereign Camp v. Putman, 206 S.W. 970 (Tex. Civ. App. 1918), as follows:

Waiver is the voluntary surrender of a right; estoppel is the inhibition to assert it from the mischief that has followed. Waiver involves both knowledge and intention; an estoppel may arise where there is no intent to mislead. * * * Waiver involves the acts and conduct of only one of the parties; estoppel involves the conduct of both. A waiver does not necessarily imply that one has been misled to his prejudice, or into an altered position; an estoppel always involves this element. * # * Estoppel arises where, by the fault of one party, another has been induced, ignorantly or innocently, to change his position for the worse in such manner that it would operate as a virtual fraud upon him to allow the party by whom he has been misled to assert the right in controversy.

There may have been no intent on the part of the appellant to mislead the widow but if she was misled by their failure to object to her claim of dower interest in that part of the estate which was distributed, she may claim estoppel as to the balance of her dower interest in the estate. It appears from the action of the appellant that she recognized the dower interest of the appellee. Therefore, we hold that the widow’s dower interest had vested prior to our decisions in the Stokes and Hess cases. The j udgment of the trial court is affirmed.

Affirmed.


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

text:
    Ellis BEATTY v. Hon. Andrew G. PONDER, Circuit Judge
    82-148
    642 S.W.2d 891
    Supreme Court of Arkansas
    Opinion delivered December 13, 1982

      Hoyt Thomas of Thomas, House Gardner, for petitioner.

      Steve Clark, Atty. Gen., by: Mary B. Stallcup, Asst. Atty. Gen.; and Leroy Blankenship of Harkey, Walmsley, Belew & Blankenship, for respondent.
   Robert H. Dudley, Justice.

Venue is the issue of this case. The plaintiff, a resident of Sharp County, filed suit in the Circuit Court of Sharp County against the defendant, a resident of Cleburne County. The complaint stated that plaintiff delivered his houseboat to defendant to repair a leak but defendant negligently allowed the boat to sink into Greers Ferry Lake and, as a result, plaintiff suffered property damages. After service of summons in Cleburne County, defendant moved to dismiss for lack of venue in the Circuit Court of Sharp County. The trial court denied the motion. Defendant now seeks a writ of prohibition to prevent the trial court from exercising jurisdiction. Jurisdiction of the petition for the writ of prohibition is in this Court pursuant to Rule 29 (1) (f). We grant the writ.

Plaintiff chose not to follow Ark. Stat. Ann. § 27-613 (Repl. 1979) which provides that actions other than those specifically provided by other statutes may be brought in any county in which the defendant or one of several defendants resides or may be summoned. Instead, plaintiff filed the lawsuit in the county of his residence. It is admitted that petitioner was not served in Sharp County. Thus, the question is whether an action for damages to personal property can be brought in a county when the only connection with that county is the residence of the plaintiff. The answer is found in our interpretation of Ark. Stat. Ann. § 27-611 (Repl. 1979), the statute which allows venue in the county where the owner of the property resides. We have consistently limited the application of § 27-611 to actions involving actual force or violence. Hooper v. Blue Hill Garage, 275 Ark. 5, 627 S.W.2d 2 (1982). In the case before us the complaint states a cause of action for damages to personal property as the result of a breach of contract. The breach of contract is alleged to involve an accident, which may have been a result of either negligent or tortious conduct, but it is not alleged to have involved force or violence. Because there is no assertion of an accident involving force or violence, § 27-611 is inapplicable to this case. Hooper v. Blue Hill Garage, supra, citing Sarratt v. Crouch Equipment Co., 245 Ark. 775, 434S.W.2d 286(1968); Evans Laboratories, Inc. v. Russell C. Roberts, Circuit Judge, 243 Ark. 987, 423 S.W.2d 271 (1968); International Harvester Co. v. Lyle Brown, Circuit Judge, 241 Ark. 452, 408 S.W.2d 504 (1966). Therefore, since venue was improper in Sharp County, the trial court should have sustained the motion to dismiss.

Prohibition to the circuit court is the proper remedy in this case. International Harvester Co. v. Lyle Brown, Circuit Judge, supra.

Writ granted.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I think the majority misinterprets Ark. Stat. Ann. § 27-611 (Repl. 1979). The plain language of the statute appears to me to allow an action for damage to personal property, caused by the negligence of another, to be brought in the county of the plaintiff’s residence. The statute reads as follows:

27-611. Actions for damages to or conversion of personal property. — Any action for damages to personal property by wrongful or negligent act, or for the conversion of personal property, may be brought either in the county where the accident occurred which caused the damage, or in the county where the property was converted, or in the county of the residence of the person who was owner of the property at the time the cause of action arose.

Nowhere in the above-quoted language does the statute mention that an accident, to come under the provisions of § 27-611, must involve force or violence. The majority’s reliance upon this extraneous requirement is nothing short of judicial legislation.

There are other statutes relating to venue. They are Ark. Stat. Ann. §§ 27-610, 612 and 613 (Repl. 1979). The relevant portion of § 27-610 states:

All actions for damages for personal injury or death by wrongful act shall be brought in the county where the accident occurred which caused the injury or death or in the county where the person injured or killed resided at the time of injury . . .

The provisions of § 26-612 state in pertinent part:

All civil actions for the recovery of damages brought against a non-resident of the State of Arkansas may be commenced in the county where the accident occurred which caused the injury, or death, or in the county where the person injured, or killed, resided at the time of the injury.

In § 27-613 it is said:

Every other action may be brought in any county in which the defendant, or one of several defendants, resides, or is summoned.

It is obvious that neither § 27-610 nor 612 applies. Ark. Stat. Ann. § 27-613 applies to all other actions not provided for in the preceding sections. There are other venue statutes which are not involved in the present case.

Plaintiff’s complaint sought to recover damages for the negligence of defendant in causing damage to plaintiff’s houseboat. There is no doubt that a houseboat is personal property. It seems to me that this cause of action more appropriately fits into the category of the language contained in § 27-611 than any of the others. None of the cases cited in the majority opinion held that facts such as were alleged in the present complaint could not be properly brought pursuant to this statute. The majority relies upon Evans Laboratories, Inc. v. Roberts, Circuit Judge, 243 Ark. 987, 423 S.W.2d 271 (1968). In reading this case I find that it was an action for breach of contract and implied warranty. The opinion dealt with Ark. Stat. Ann. §§ 27-610 and 613. The venue statute here in question was not even mentioned in Evans. The majority also relies on International Harvester Co. v. Brown, Circuit Judge, 241 Ark. 452, 408 S. W.2d 504 (1966). The action in International Harvester was for breach of contract or implied warranty and merchantability of a truck. Neither case concerned negligent injury to personal property. The third case relied upon by the majority is Hooper v. Blue Hill Garage, 275 Ark. 5, 627 S.W.2d 2 (1982). In Hooper, we stated:

... What the complaint does state is a cause of action for Zajac’s breach of contract, which may have been negligent or tortious conduct. . . . There being no assertion of an accident in this case, the trial court correctly sustained Zajac’s motion to quash service.

I am of the opinion that none of the cases relied upon by the majority control the present factual situation.

The plaintiff claimed damages to personal property resulting from the negligent conduct of the defendant which clearly comes under the language of Ark. Stat. Ann. § 27-611. Therefore, I would uphold the ruling of the trial court.


author: Steele Hays, Justice.

text:
    Gerald OSBORNE v. STATE of Arkansas
    CR 80-154
    643 S.W.2d 251
    Supreme Court of Arkansas
    Opinion delivered December 13, 1982

      William C. McArthur, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Appellant was charged with two counts of possession of a controlled substance with intent to deliver and one count of possession only. He was tried by a jury on July 17, 1979 and found guilty on all three counts. From that conviction he brings this appeal. We find no merit in the first two points raised, but there is merit in the third point and we reverse the case in part.

Appellant first argues that the search warrant used to seize the controlled substances was defective and the evidence should have been suppressed. He contends the search was in violation of A.R.Cr.P. 13.2 because it was conducted at 8:20 p.m. and with insufficient justification. Whether an encroachment of 20 minutes on the 8:00 p.m. time limit set by Rule 13.2 would amount to a substantial violation is questionable — see A.R.Cr.P. 16.2. But we need not reach that issue as the appellant failed to raise the argument before the trial court. Gatlin v. State, 262 Ark. 485, 559 S.W.2d 12 (1977).

Appellant also claims the warrant was invalid because of the form of the affidavit. In the space provided for detailing the facts constituting probable cause, “see attachment” is typed in. On the attached sheet are the facts with the officer’s signature at the bottom. At the suppression hearing the judge who signed the warrant testified he read the affidavit and had the officer sign it and the attachment in his presence. He said this procedure was often followed when the form failed to provide enough space for all the information. We approved this procedure in Heard v. State, 272 Ark. 140, 612 S.W.2d 312 (1981), in a similar situation, and said that where the information would not fit in the space provided, the statement was incorporated in a practical and common sense manner.

The appellant’s second argument relates to the instructions. He first contends that it was error not to give a requested instruction which read:

“Mere occupancy of a place where drugs are found does not establish possession of controlled substances without additional evidence of possession.”

The trial court refused the instruction because it was an incomplete statement of the law. We agree. The court gave the correct AMCI instruction on possession, but the appellant also contends that it erred by not including any instructions on actual and constructive possession. Following the possession instructions, the AMCI 3304 gives the definition of actual and constructive possession and notes that these instructions should be given when constructive possession is at issue. In the brief discussion of the proffered instructions, the issue of constructive possession was never directly discussed, and the record shows that at one ponit the prosecution said the state was not alleging constructive possession, to which the appellant made no reply. In addition, we stated in Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980), a criminal case, that the parties are implicitly required to request an applicable AMI, or upon tendering a substitute instruction, to state into the record, the reasons they believe the AMI is inadequate or inaccurately states the law. This the appellant failed to do. For the reasons stated we find that the appellant has waived his objection to the instructions as they were given.

Appellant’s last argument challenges the sufficiency of the evidence. The facts reveal that on January 11, 1978, the police went to appellant’s residence with a search warrant. When they arrived his wife answered the door and told them appellant was across the street at his parents’ home. One of the officers went to get him while the others began the search. When the appellant arrived, the police had already found controlled substances and the appellant was arrested. He was searched incident to his arrest and a small vial of cocaine was found in his pocket. At the residence the police confiscated phentermine pills from a dresser in one of the bedrooms and from a suitcase in the hall. Marijuana was found on a tray in the living room, where appellant’s wife and others were present.

We have said that possession need not be actual, physical possession, but may be constructive, when one controls a substance or has the right to control it. Constructive possession can be implied when the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control, or to the joint control of the accused and another, but neither actual nor exclusive possession of the contraband is necessary to sustain a charge of possession. See Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). However, we have also held that joint occupancy of premises alone will not be sufficient to establish possession or joint possession unless there are additional factors from which the jury can infer possession. See Cary v. State, supra; Ravellette v. State, 264 Ark. 344,571 S.W.2d 433 (1978).

There are two separate problems involved in establishing “exclusive control” of the premises in order to impute possession. The first is whether the accused is a sole or joint occupant, and the second is, if the accused is the sole occupant, does he have actual exclusive control of the premises.

The problem of joint occupancy arises because of the rule that when joint occupancy is the only evidence the state has, there must be some additional link between the accused and the contraband. On the other hand, if the state is proving a case through constructive possession of contrabnd by the occupant of a dwelling, it is not required in the first instance to disprove joint occupancy. If, however, evidence is presented that indicates joint occupancy and occupancy is the only evidence the state offers to prove possession, it must either provide the necessary link or prove the accused was in sole possession (but see further discussion below). For example, in Lee v. State, 270 Ark. 892, 608 S.W.2d 3 (1980), the state was establishing its case through constructive possession. The defendant presented evidence to establish joint occupancy but the state countered with other evidence to establish sole occupancy by the defendant and we upheld the sufficiency of the evidence on appeal.

If it is proved that the defendant is the sole occupant, or there is no evidence to indicate the defendant is a joint occupant, is that evidence alone sufficient to establish that he had exclusive control over the premises and, therefore, over the contraband?

It has been held in other jurisdictions, where one has exclusive possession of a dwelling where narcotics are found it may be inferred, even in the absence of other incriminating evidence, that such person knew of the presence of the narcotics and had control of them (see Davis v. State, 262 A.2d 578 [1970]), and such circumstances are sufficient to sustain a conviction. See People v. Nettles, 178 N.E.2d 361. While we agree that such evidence can be sufficient to sustain a conviction, we don’t agree that the rule will fit all cases. There may be other circumstances that detract from an inference of possession to the point the evidence becomes insufficient to establish control of the contraband.

In two somewhat similar cases, where the defendant was the occupant of the premises, but other individuals were present and in possession of contraband, the courts in each case found the defendant not in possession. People v. Sonabria, 423 N.Y.S.2d 223 (1979) and People v. Schrieber, 310 N.Y.S.2d 551 (1970). In Sonabria, a sale of heroin had taken place in the defendant’s kitchen just a few feet away from her. The court stated “the record is barren of any evidence tending to establish that the defendant exercised, or that she could have exercised, any dominion or control over the narcotics in any manner... although the sale occurred in her apartment she did not and could not have exercised that dominion and control over the narcotics necessary to establish a constructive possession.” In Schreiber a “pot” party was being held at appellant’s apartment. At the time the police arrived, the appellant was not present, and a search turned up controlled substances throughout the apartment. There was testimony that a sub-tenant was sleeping there and that the appellant had ceased to live in the apartment for at least a week. But there were enough of the appellant’s belongings there to warrant the conclusion that the premises were still the appellant’s, and it was also clear that the appellant had consented to the party. There was additional evidence that the door was usually open, that several persons who had in the past used marijuana were in the apartment on the night of the raid, and that people came in to use or borrow paints and artist’s supplies. The court stated that control of the premises gave rise to the inference of unlawful possession and acknowledged that mere access by other persons was insufficient to defeat a charge of constructive possession. But under the facts in Schrieber the court found the evidence insufficient on the issue of control.

Here, we are faced with both aspects affecting the defendant’s exclusive control of the premises, i.e. the evidence suggesting joint occupancy and the evidence suggesting lack of actual control of the premises. The only evidence the state presented on the issue of possession of the controlled substance was the stipulation the appellant resided at the premises, plus the cocaine found on his person. But there are other circumstances that raise questions as to the defendant’s control of the premises and its contents. There were four people present when the police arrived, though not the appellant. Although there was no specific testimony appellant’s wife lived there, it seems reasonable to assume she shared the residence with her husband.

Some of the pills were found in a bedroom, but there was no testimony as to whose bedroom it was, whose belongings were there or whether both bedrooms were regularly used. Other pills were found in a suitcase in the hall, which only adds to the speculation. We are told nothing about it except that it was in the hall. The record gives us no basis for rational inferences. The marijuana was on a tray in the living room near the four individuals but how long they had been there or how long the appellant had been gone, we aren’t told. We know only that appellant was not there when the police arrived.

Looking at the evidente in its entirety and most favorably to the appellee, it fails to indicate exclusive control of the premises in either sense of the term, or to indicate the right to control the contents therein by the defendant; hence, we are left with unresolved doubts. The only evidence the state presented was the stipulation that the home was the appellant’s residence. There is no other evidence that points with any certainty to appellant’s control. It is our duty upon review to view the evidence in the light most favorable to the appellee, and affirm if there is substantial evidence to support the finding of the jury. Substantial evidence means that the jury could have reached its conclusion without having to resort to speculation or conjecture. Cassel v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). For the reasons discussed, we find that only speculation and conjecture could have sustained a conviction for the possession with intent to deliver on counts 2 and 3 for the marijuana and phentermine and therefore we must reverse the convictions for both counts. The judgment with respect to the charge of cocaine is affirmed.


author: Richard B. Adkisson, Chief Justice. John I. Purtle, Justice,

text:
    FARMERS MUTUAL INSURANCE COMPANY OF GENTRY, Ark. v. Albert LANE and Carolyn LANE
    82-154
    643 S.W.2d 544
    Supreme Court of Arkansas
    Opinion delivered December 20, 1982

      /. L. Hendren, for appellant.

      Sanford, Pate <b Marschewski, by: Jon R. Sanford, for, appellees.
   Richard B. Adkisson, Chief Justice.

The Pope County Circuit Court held on motion for summary judgment that appellant, Farmers Mutual Insurance Company, hereinafter Company, was liable to appellees, Albert and Carolyn Lane, for a statutory 12% penalty and attorneys’ fees pursuant to Ark. Stat. Ann. § 66-3238 (Repl. 1980). The trial court held the Company had failed to make timely payment, after demand, according to the terms of a fire insurance policy in which the appellees were the named insured. On appeal, we affirm.

Although appellees were the insureds under the policy, a Mrs. Wesley Smith was named in a mortgage clause of the policy as a loss payee. This clause stated that even if the policy were cancelled, it would remain in effect as to Mrs. Smith for ten days after notice to her of any cancellation.

Mrs. Smith was a previous owner of the insured property. She had sold the property to Eddie and Joyce Snyder who in turn sold it to appellees. Both transfers were by escrow agreement with Mrs. Smith as the record titleholder of the property until the payments under the escrow agreement were completed.

The insured property was damaged by fire on September 19, 1979, and appellees demanded payment pursuant to the policy. The Company refused, contending that the policy had lapsed because of nonpayment of the premiums. Three months later appellees filed suit against the Company to force payment, naming Mrs. Smith as a defendant and requesting her rights under the policy be declared. On October 31, 1980, defendant Smith filed a cross-complaint against the Company alleging that the policy was in effect as to her interest and demanding payment in full.

In February of 1981, appellant paid Mrs. Smith the full amount of the policy plus interest. However, Mrs. Smith did not collect the 12% penalty and attorneys’ fees because she had agreed with appellees that they, as the insureds under the policy, were entitled to that amount.

Appellees base their right to 12% penalty plus attorneys’ fees on Ark. Stat. Ann. § 66-3238 (Repl. 1980) which provides:

In all cases where loss occurs and the cargo, fire, marine, casualty, fidelity, surety, cyclone, tornado, life, health, accident, medical, hospital, or surgical benefit insurance company and fraternal benefit society or farmers’ mutual aid association liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such person, firm, corporation and/or association shall be liable to pay the holder of such policy or his assigns, in addition to the amount of such loss, twelve percent (12%) damages upon the amount of such loss, together with all reasonable attorneys’ fees for the prosecution and collection of said loss; . . .

The plain wording of the statute makes the Company liable to the “holder” of such policy, the appellees herein, for 12% penalty and reasonable attorneys’ fees in addition to the amount due under the policy where, as here, payment is not timely after demand is made.

Appellant argues, however, that the insureds should not have been awarded the penalty and attorneys’ fees under this statute because they were no longer insured under the policy. We do not agree. The appellees were the named insureds under the policy and, as such, were entitled to have the Company make payment to the loss payee, Mrs. Smith, in accordance with the terms of the policy. This is so even though appellees’ rights may have lapsed as to some other provisions of the policy. Only one policy exists in exchange for the premiums paid by the insured. It does not matter whether the actual payment under the policy is made to the insured or to the loss payee in order for the insureds to be entitled to the statutory penalty and attorneys’ fees when payment by the Company is late. Farm Bureau Mutual Ins. Co. v. Shaw, 269 Ark. 757, 600 S.W.2d 432 (Ark. App. 1980).

Appellant argues that appellees are not entitled to the statutory penalty and attorneys’ fees because the loss payee never “demanded” payment as required by the statute. This argument fails because the insureds made the necessary demand, and we know of no reason why the loss payee must also demand payment. In any event there was no offer to pay the loss payee prior to suit; the Company actually denied liability to everyone under the policy until less than three weeks before trial when it paid the loss payee the full amount of the policy. Cf. Valley Forge Ins. Co. v. Carner, 277 Ark. 447, 642 S.W.2d 317 (1982). Here, the demand by the insureds was sufficient to put appellant on notice that it should pay in accordance with the terms of the policy.

Appellant also argues that the insureds are not entitled to the penalty and attorneys’ fees because there is an insufficient relationship between Mrs. Smith, who received the insurance proceeds, and the insureds. This argument ignores the express terms of the insurance contract between the Company and the insureds whereby Mrs. Smith was named as a loss payee.

Lastly, appellant argues that the trial court erred in reconsidering appellees’ motion for summary judgment after overruling it at an earlier date. The record reflects the trial court reversed himself on the motion for summary judgment after hearing argument of counsel. We find no error.

Appellees’ request for allowance of $900 attorneys’ fees on appeal is granted.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. In the present case the appellees’ rights under the contract of insurance had expired for nonpayment of premiums. Mrs. Smith’s rights as a loss payee continued beyond that date ostensibly to allow her to get a new policy or reinstate the old policy and be protected in the interim. The loss occurred during this time and payment was made by the insurance company to Mrs. Smith in the full amount of the policy plus interest. Appellees now wish to benefit from a penalty provision of the insurance code. Penalties and forfeitures are not favored in the law. Harper v. Wheatley Implement Co., Inc., 278 Ark. 27, 643 S.W.2d 537 (1982). Neither is unjust enrichment favored by the law. Whitley v. Irwin, 250 Ark. 543, 465 S.W.2d 906 (1971).

The case of Farm Bureau Mutual Ins. Co. v. Shaw, 269 Ark. 757, 600 S.W.2d 432 (Ark. App. 1980), cited by the majority, is a very different situation than the one presently before us. The insureds in Shaw had received a premium notice extending their protection for ten days from the due date of the premium and the loss occurred within this time. The present appellees received no such extension and were in fact not covered by the policy.

In Farm Bureau Insurance Co. v. Paladino, 264 Ark. 311, 571 S.W.2d 86 (1978), this court stated: “We have consistently held that the 12% penalty and attorney’s fee, as provided for in Ark. Stat. Ann. § 66-3238 (Repl. 1966), can only be awarded when the exact amount sued for is recovered.” In the case before us, the appellees had no standing to sue under the contract and, indeed, were not entitled to recover a single penny from the insurance company. How the majority can award a penalty and attorney’s fees to one who could not recover any amount anyway is utterly beyond me. Therefore, I would not allow the penalty or the attorney’s fees to be paid to appellees.


author: Richard B. Adkisson, Chief Justice.

text:
    TRI-B ADVERTISING CO. v. Jim THOMAS, d/b/a MID-AMERICA AUTO SALES, INC.
    82-166
    643 S.W.2d 547
    Supreme Court of Arkansas
    Opinion delivered December 20, 1982

      Barrett, Wheatley, Smith ¿r Deacon, for appellant.

      Saxton & Ayres, for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, Tri-B Advertising Company, constructed a billboard sign on property which was adjacent to a used car lot owned by appellee, Jim Thomas. During a storm the billboard was blown over, landing on top of seven of appellee’s vehicles. Appellee filed suit alleging negligence and that the construction and maintenance of the billboard was an ultra-hazardous activity, thereby making appellant strictly liable for damages. A jury returned a verdict for appellee in the amount of $5,156.35 for damages to the vehicles. On appeal, we reverse and remand.

Appellant argues, and we agree, that it was error for the trial court to instruct the jury as to ultrahazardous activities. AMI 1107 states:

An activity is ultra-hazardous if it necessarily involves risk of serious harm to persons or property of others which cannot be eliminated by exercise of utmost care and is not a matter of common usage.
Common usage is defined as an activity customarily carried on by the great mass of mankind or by many people in the community.
If you find that the above stated three elements existed, you must find against the defendant Tri-B on the issue of liability.

This instruction is inapplicable to this case as a matter of law. The construction and maintenance of a billboard sign is not an ultrahazardous activity as contemplated by this instruction. Any risk of serious harm could be eliminated by the exercise of utmost care. See Dye v. Burdick, 262 Ark. 124, 553 S.W.2d 833 (1977).

Some of the activities which we have previously upheld as being subject to a jury finding of ultrahazardous are the delivery of propane gas to a storage yard, Zero Whsle. Gas Co., Inc. v. Stroud, 264 Ark. 27, 571 S.W.2d 74 (1978); and the spraying of chemicals on crops, Chapman Chem. Co. v. Taylor, 215 Ark. 630, 222 S.W.2d 820 (1949). In both of these cases the liability imposed arose out of the abnormal danger of the activity itself. Here, although perhaps the construction and maintenance of a billboard sign involved some danger, it did not involve abnormal danger and, therefore, the instruction should not have been given. See also NLR Transp. Co. v. Finkbeiner, 243 Ark. 596, 420 S.W.2d 874 (1967).

Appellant also argues that the sign in question did not create an "unreasonable danger’’ as a matter of law and, therefore, the trial court erred in giving AMI 1109. This instruction provides: Under certain circumstances perhaps a sign could be unreasonably dangerous, and it was for the jury to decide if such was the case here. Therefore, we refuse to hold that, as a matter of law, the sign was not unreasonably dangerous.

It is the duty of an owner or occupier of land to protect property from damages resulting from a structure upon his land if he knows or should know of an unreasonable danger created by that structure, and he fails after having a reasonable opportunity to eliminate the danger or otherwise protect such property against it. A violation of this duty is negligence. . . .

Lastly, appellant argues that the trial court abused its discretion in excluding photographs of the local storm damage and the testimony of a newspaper reporter who took them. The photographs were excluded on the grounds that the areas depicted were too remote from the location of the used car lot. However, before an adverse ruling as to the admissibility of evidence is reviewable on appeal, the objecting party must make a sufficient record to enable this court to rule on the issues presented. See Bank of Ozark v. Isaacs, 263 Ark. 113, 563 S.W.2d 707 (1978). Here, the proffered testimony is too sketchy for this court to determine whether or not the trial court abused its discretion. The record reflects only that the witness would have testified that he “investigated storm damage.” Since there was no testimony regarding the storm damage and the photographs were not made a part of the record, we are unable to rule on the alleged error.

Reversed and remanded.


author: George Rose Smith, Justice.

text:
    Louise SMITH, Individually, and as Executrix, et al v. Charlie WARD
    82-158
    643 S.W.2d 549
    Supreme Court of Arkansas
    Opinion delivered December 20, 1982

      L. David Stubbs, for appellants.

      R. Bynum Gibson, Jr. of Gibson ir Gibson, P.A., for appellee.
   George Rose Smith, Justice.

In 1981 the appellee, Charlie Ward, brought this suit in the circuit court to recover possession of a 35-acre tract that had been left to him by the will of his stepmother, Melissie Ward, who died in 1967 without descendants. Her will left the property to her husband, Miles Ward, for life with remainder to Miles’s son, the appellee Charlie. Melissie’s will was never filed for probate. Nevertheless, her surviving husband remained in possession of the property until his own death in 1980. His will purported to leave the property to the appellants, defendants below, who contend in substance that despite Act 347 of 1981, Ark. Stat. Ann. § 62-2126.1 (Supp. 1981), an unprobated will is of no effect and cannot affect the title to land. Melissie’s possible revocation of her will and other disputed issues of fact have been settled by the jury’s verdict in Charlie’s favor. The key question of law is the effect of Act 347 of 1981.

The 1949 Probate Code provided, inflexibly: “No will shall be effectual for the purpose of proving title to or the right to the possession of any real or personal property disposed of by the will until it has been admitted to probate.” Ark. Stat. Ann. § 62-2126 (Repl. 1971). In 1981, however, the legislature adopted Act 347, which creates the following exception to the Code’s sweeping rejection of unprobated wills:

[Ejxcept that a duly executed and unrevoked will which has not been probated may be admitted as evidence of a devise if (1) no proceeding in Probate Court concerning the succession or administration of the estate has occurred, and (2) either the devisee or his successors and assigns possessed the property devised in accordance with the provisions of the will, or the property devised was not possessed or claimed by anyone by virtue of the decedent’s title during the time period for testacy proceedings.

The statute manifestly gives effect to a testator’s unrevoked will, though never probated, if the two specified conditions are satisfied. The appellee met all the requirements of the 1981 act by introducing a Xerox copy of Melissie’s will, and by offering proof that it had been duly executed and not revoked, that there had been no administration of the estate, and that the devisee for life had possessed the property until his death.

The appellants’ main argument, almost their sole argument, is that the court should not have permitted the plaintiff even to introduce into evidence the Xerox copy of Melissie’s will. It is argued, primarily, that the Probate Code, quoted earlier, denied any effect to an unprobated will and that Act 347 expressly declared in its second section that it did not repeal that section of the Probate code. True, but Act 347 did amend the Code, else it had no purpose. Since the appellee’s case is within the purview of the amendment, the appellants’ argument fails.

The appellants also argue, secondarily, that the Xerox copy of Melissie’s will was inadmissible under Uniform Evidence Rule 1003, Ark. Stat. Ann. § 28-1001 (Repl. 1979), which reads:

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity or continuing effectiveness of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

It is insisted that the original unprobated will was not of “continuing effectiveness” and therefore could not be proved by a Xerox duplicate. The short answer to this reasoning is that although the original will was no longer effective as a document eligible for probate, it was effective “as evidence of a devise” under Act 347. If that is not so, the act had no effect whatever. The duplicate is therefore admissible.

We cannot consider counsel’s argument about a requested instruction. The instruction may have been requested, but the record does not so reflect. Its inclusion in the abstract and brief was decidedly improper. BWH, Inc. v. Metropolitan Nat. Bank., 267 Ark. 182, 191, 590 S.W.2d 247 (1979); Harvey v. Castleberry, 258 Ark. 722, 529 S.W.2d 324 (1975).

Affirmed.


text:
    Joe WILSON v. CITY OF PINE BLUFF
    CR 82-149
    643 S.W.2d 569
    Supreme Court of Arkansas
    Opinion delivered December 20, 1982

      Thurman Ragar, Jr., for petitioner.

      Berlin Jones, for respondent.
   George Rose Smith, Justice.

The petitioner seeks a review of the decision of the Court of Appeals on the ground that the case involves the interpretation of the United States Constitution and of the Arkansas Constitution (the right of a person to be confronted with the witnesses against him). We do not agree. When the language of the federal and state constitution is identical, as in the instance of the confrontation clause, the due process clause, and several others, and there is no reason for us to construe our constitution other than in the same way as the federal constitution has been construed, we take the view that the case presents a federal question, not a state one under Rule 29 (1) (a). Here, for example, the main Arkansas case cited in the petition for certiorari merely followed decisions elsewhere with respect to the confrontation clause. Smith v. State, 200 Ark. 1152, 143 S.W.2d 190(1940).

Since the case does not involve an interpretation of our constitution, there was no reason for the appeal to have been filed here or to have been transferred by the Court of Appeals. The petition for review must therefore be denied. Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979). As indicated by the Moose case, our denial of the petition for review does not imply that we approve or disapprove of the decision of the Court of Appeals.

Writ denied.


text:
    Haskell BROWN et ux v. Doreen MEEKINS
    82-159
    643 S.W.2d 553
    Supreme Court of Arkansas
    Opinion delivered December 20, 1982

      Dan Stripling of Stripling ir Morgan, for appellants.

      Stephen E. James, P.A., for appellee.
   Frank Holt, Justice.

The issue in this case is whether grandparents, who have court ordered visitation rights, are entitled to notice of an action to adopt their minor grandson, Kenneth Ray Meekins. The Browns are the parents of the natural mother of Kenneth. Kenneth’s mother died in July, 1978. The natural father married appellee Doreen Laverne Meekins in May, 1979. In 1980 a dispute arose concerning visitation by the Browns with their grandson, resulting in the chancellor entering a decree fixing the visitation rights as authorized by Ark. Stat. Ann. § 57-135 (Supp. 1981).

The Browns, who live in California, where Kenneth’s mother lived and died, were not given notice of the adoption proceedings. Their attorney learned of the proceedings when he was in the courthouse on the day of the adoption hearing. He made an appearance at the commencement of the hearing and orally moved for a continuance and in the alternative, he asked for the right to intervene immediately. Both motions were denied “on the basis that under the statute no notice is required for this hearing as to the people suggested .... ” The adoption was granted that day and the Browns appeal, asserting the probate judge erred in denying their motion to intervene. We agree.

In Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981), we held that grandparents who have been granted visitation rights pursuant to § 57-135 have an interest in adoption proceedings sufficient to entitle them to intervene for the limited purpose of offering such evidence as may be relevant to the issue of whether the proposed adoption is in the best interest of the child. There, however, the grandparents were given timely notice of the adoption proceedings, so we did not reach the issue of whether they were constitutionally entitled to notice. Since, here, the court’s ruling was predicated on the assumption that notice is not required, this issue is squarely presented.

The logical implication of our decision in Quarles is that grandparents who have court ordered visitation rights, as here, are constitutionally entitled to receive notice of an adoption proceeding. Otherwise, the right to intervene in the adoption action is meaningless as the instant case illustrates. Here, the grandparents would not have known of the proceeding but for the happenstance of their attorney being in the courtroom on the day of the hearing and noticing the court’s docket of cases for that day. Obviously, no time was available for preparing an adequate motion for intervention and preparation for the hearing. Furthermore, in Quarles we relied upon Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L.Ed.2d 62 (1965), where the right of the natural father to receive notice was recognized. We could not rely upon Armstrong for our holding in Quarles that grandparents who have been awarded visitation rights also have the right to intervene in adoption proceedings, without also recognizing the concomitant right that adequate and timely notice must be given to such grandparents. Any other result is inconsistent with due process which, at the very least, requires a reasonable opportunity to be heard. In Armstrong the Supreme Court reiterated its well-known and oft-repeated holding that “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” This rule is applicable here by virtue of both the Fourteenth Amendment, Constitution of the United States, and Art. 2, § 8, Constitution of Arkansas (1874).

Reversed and remanded.

Purtle, J., not participating.

       A.R.C.P., Rule 7 (b) (1) and reporter’s note 5.