author: ROBERT L. Brown, Justice. RAY THORNTON, Justice,

text:
    RINECO CHEMICAL INDUSTRIES, INC. v. Richard WEISS, Director of the Department of Finance and Administration of the State of Arkansas
    00-763
    40 S.W.3d 257
    Supreme Court of Arkansas
    Opinion delivered March 8, 2001

      Friday, Eldredge & Clark, by: William Thomas Baxter, Barry E. Coplin, and Allison J Cornwell, for appellant.

      Mark N. Waller, for appellee.
   ROBERT L. Brown, Justice.

Appellant Rineco Chemical Industries, Inc., appeals an order affirming the assessment of the Arkansas Compensating Use Tax (“use tax”) by appellee Dick Barclay, Director of the Arkansas Department of Finance & Administration (DFA), in the amount of $258,322.46. Rineco raises two points on appeal: (1) the packaging materials it purchased out of state qualify for the sale-for-resale tax exemption under state law; and (2) the machinery and equipment purchased out of state are used in manufacturing articles of commerce and, therefore, qualify for an exemption under state law. Neither point is meritorious, and we affirm.

Rineco is engaged in the business of hazardous waste disposal in Saline County. In its business, companies that generate hazardous waste materials in their operations pay Rineco to take and dispose of the waste materials. According to a Rineco brochure that is part of the record in this case, Rineco handles wastes such as paints, resins, printing inks, refinery waste, sludges, rockhard solids, visquine, towels, gloves, rags, filter cartridges, and rubber boots. Rineco then analyzes and screens the waste material and shreds and blends the materials into various fuel products to meet certain specifications. Solid waste is packaged in plastic or metal pails, barrels, and sacks, which become part of the fuel product. Accelerants such as oil may be added to increase the product’s BTU or British Thermal Unit content. Next, Rineco ships the packaged waste/fuel to cement kilns and power plants. Depending on the economic circumstances, Rineco either pays the cement kilns and power plants to dispose of the waste materials or these businesses pay Rineco for the waste materials which it uses as fuel. When the cost of fossil fuels such as coal, oil, or natural gas exceeds the cost of Rineco’s packaged fuel, the cement kilns and power plants pay Rineco for the fuel. When the cost of the fossil fuels does not, then Rineco pays the cement kilns and power plants to dispose of the packaged hazardous waste. When the packaged fuel is burned in the cement kilns or power plants, the packaging materials such as the pails, barrels, or sacks are consumed as part of the fuel.

In 1994, DFA initiated an audit of Rineco’s purchases of (1) pails and other packaging materials-from out-of-state vendors used to package the hazardous waste for shipment to the cement kilns and power plants, and (2) the machinery and equipment purchased by Rineco from out-of-state vendors which are used in the packaging process. As a result of the audit, DFA issued a Notice of Proposed Assessment to Rineco on February 27, 1995, in which it notified Rineco that its purchases of the packaging materials and the machinery and equipment from January 1, 1989, through November 30, 1994, were subject to. the Arkansas Compensating Use Tax. Because of this, Rineco was hable for payment of use taxes in the amount of $273,842.28.

Rineco sought relief from the assessment through DFA’s administrative process and claimed that its purchases of the packaging materials were exempt from the use tax under the sale-for-resale exemption [See Ark. Code Ann. § 26-52-401 (12)(A) (Supp. 1999)], and its purchases of machinery and equipment were exempt from the use tax under the manufacturing exemption [See Ark. Code Ann. § 26-53-114(a)(1)(A) (Supp. 1999)]. The assessment was upheld, and Rineco timely paid the amount assessed under protest. Rineco next filed a refund claim in the Saline County Chancery Court. Following trial, the chancellor issued his order in which he denied the refund and held that the packaging materials and the machinery and equipment were not exempt from the use tax. The chancery court concluded in its order as follows:

The court concludes that Plaintiff is not engaged in manufacturing articles of commerce for resale and that the use tax assessment against Plaintiff is sustained in its entirety. Plaintiff does not “manufacture” fuel from hazardous waste as the term “manufacture” is commonly understood. Plaintiff begins with hazardous waste in bulk form and processes the waste into a form which can be burned. This process is not equivalent to manufacturing. Alternatively, Plaintiff does not manufacture articles of commerce. The term “articles of commerce” is defined in DFA Gross Receipts Regulation GR-55 (E)(6) as property placed on the market for retail sale. The packages of hazardous waste are not sold at retail to anyone. Rather, the cement producers, power plants and others are paid by Plaintiff to take the packaged waste.

It is from this order that Rineco appeals.

I. Standard of Review

In any tax-exemption case, the burden of proof is on the taxpayer to establish the exemption beyond a reasonable doubt. See Pulaski County v. Jacuzzi Brothers Division, 332 Ark. 91, 964 S.W.2d 788 (1998); see also Arkansas Beverage Co. v. Heath, 257 Ark. 991, 993, 521 S.W.2d 835, 836-837 (1975). In Leathers v. Warmack, 341 Ark. 609, 612, 19 S.W.3d 27, 30 (2000), we said:

Our standard of review in tax-exemption cases is well established. Tax exemptions are strictly construed against the exemption. Technical Servs. of Ark., Inc. v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995); Pledger v. C.B. Form Co., 316 Ark. 22, 871 S.W.2d 333 (1994). A strong presumption operates in favor of the taxing power, and the taxpayer must establish an entitlement to a tax exemption beyond a reasonable doubt. Id. This standard is applicable to claims of exemption from income tax. See Morgan v. Cook, 211 Ark. 755, 202 S.W.2d 355 (1947). On appeal, we review tax-exemption cases de novo on the record, but we will not reverse a finding of fact by the chancellor unless it is clearly erroneous. Technical Servs., 320 Ark. 333, 896 S.W.2d 433.

In strictly construing tax exemptions, this court has said that “to doubt is to deny the exemption.” Pledger v. C.B. Form, 316 Ark. 22, 25, 871 S.W.2d 333, 334 (1994), quoting Pledger v. Baldor Int’l, 309 Ark. 30, 33, 827 S.W.2d 646, 648 (1992). In short, though the taxpayer’s burden of proof to establish a tax exemption is not insurmountable, it is significant.

II. Sale for Resale

Rineco’s first point of appeal deals with the chancellor’s denial of a use tax exemption for packaging materials such as pails, buckets, and sacks purchased out of state. The apposite statute reads:

(12)(A) Gross receipts or gross proceeds derived from sales for resale to persons regularly engaged in the business of reselling the articles purchased, whether within or without the state if the sales within the state are made to persons to whom sales tax permits have been issued as provided in § 26-52-202[.]

Ark. Code Ann. § 26-52-401 (12)(A) (Supp. 1999). (Emphasis added.)

Rineco’s argument is that the purchased packaging materials are exempt under § 26-52-401 (12) (A) because Rineco purchased the materials for resale as part of the finished product. This is evidenced, Rineco maintains, by the fact that when the packaged fuel is burned in the cement kilns and power plants, the packaging materials are consumed as part of the fuel.

Rineco posits that during the audit period, it was operating under a “reverse revenue flow” due to the current market conditions and low costs of energy. Under such conditions, Rineco acknowledges that it was actually paying the cement kilns and power plants to take and destroy the packaged waste. However, Rineco states that in the past it has bought waste materials from suppliers and has charged their customers for the resulting fuel product. Michael Spinks, Rineco’s chief financial officer, testified at the hearing before the chancery court that the economics of obtaining raw materials and how they end up in a cement kiln are currently reversed from what would normally be found in its facility. Mr. Spinks added that the current economic circumstance is based on the fact that prices fluctuate as in any other economic activity and rise and fall with the price of fossil fuels. Wiley Cameron, Director of Technical Services at Rineco, confirmed this. He testified: “[i]t’s a simple economic thing right now,” and added that for a number of years, the same kilns that are actually forcing Rineco to pay them were actually paying Rineco for this product. Finally, Craig McMann, Rineco’s Fuel Logistics and Engineering Manager, testified that “[a]s recently as five years ago, ... the kiln was paying the fuel supplier.” McMann also pointed out that the supply and demand of coal and cement have changed, stating: “Energy costs are cheaper today than they’ve ever been.” Rineco asserts that this testimony illustrates that even though the income stream is currently reversed, this could change in the future under different economic circumstances, such as with a significant increase in the price of coal, oil, and natural gas.

Rineco then goes forward and urges the court to examine the statutory definition of the term “sale.” The Arkansas Tax Code provides:

’’Sale” is declared to mean the transfer of either the title or possession, except in the case of leases or rentals, for a valuable consideration of tangible personal property, regardless of the manner, method, instrumentality, or device by which the transfer is accomplished.

Ark. Code Ann. § 26-52-103(a)(3)(A) (Supp. 1999). According to Rineco, the only point at issue here is whether Rineco received “valuable consideration” under this definition as a result of the transfer of the packaged waste/fuel to the cement kilns and power plants. Rineco maintains that it did because the transfer of the product to the kilns and power plants benefitted Rineco because it allowed the company to stay in business and maintain a relationship with potential customers for the fuel product.

In making its argument, Rineco seeks an expansive interpretation of the term “sale” and specifically the term “valuable consideration” under § 26-52-103(a)(3)(A). This same argument, however, was made to this court and rejected in Hervey v. Southern Wooden Box, 253 Ark. 290, 486 S.W.2d 65 (1972), when the predecessor statute to § 26-52-103(a)(3)(A), which was Ark. Stats. Ann. § 84-1902(c) (Repl. 1980), was interpreted. In Southern Wooden Box, the issue was whether Coca Cola Botding Company should pay a sales or use tax on wooden cases it used in marketing its soft drinks. Coca Cola claimed that it bought the cases for resale and that the cases should be exempt from sales or use taxes. The proof showed that Coca Cola paid $1.07 per case which was used to transport twenty-four botdes of Coke. The Coca Cola routeman collected $0.12 per wooden case delivered to a retailer as a deposit and credited each retailer with $0.12 upon the return of each case. We held that this was not a sale for resale of the wooden cases, which would entide Coca Cola to the exemption:

We hold that CocaCola must prove that it buys the wooden cases for the purpose of reselling them. We do not interpret the broad statutory definition of a sale to include every transaction in which there is a transfer of possession, for a consideration, Ark. Stat. Ann. § 84-1902(c). The statute must be read as a whole. If the reference to a transfer of possession were applied literally in every instance, absurd results would follow. For instance, a company engaged in renting automobiles would not be required to pay a sales tax upon its purchase of cars, because it would be buying them for resale. Similarly, a company selling butane gas in heavy iron botdes would be reselling the botdes, even though its customers were required to return them. It is our duty to give the statute a reasonable construction, not an absurd one.

Southern Wooden Box, 253 Ark. at 295, 486 S.W.2d 68-9. This court, accordingly, declined to give an expansive reading to the statutory definition of “sale” and “valuable consideration.” Rineco urges that the Southern Wooden Box case is not controlling because it involved a deposit situation as opposed to a transfer of title to or possession of property. That may be, but the case is clearly precedent for this court’s determination of the scope of the term “sale,” as defined by statute.

We conclude that the argument Rineco advances is not persuasive. When a party seeks a sale-for-resale exemption on goods purchased, it is appropriate to consider the economic realities of the sale. See Hervey v. Southern Wooden Box, supra. An examination of the realities here shows that during the audit period, Rineco was paid by the hazardous waste producers to receive shipments of hazardous waste. After preparing and packaging the waste for burning, Rineco then paid the cement kilns and power plants to take the packaged waste and burn it. Those entities never paid Rineco for packaged fuel during the audit period. With Rineco paying for the disposal of the packaged waste material, we are loath to conclude that the transaction constitutes a sale. Were we to countenance the payment of money to the cement kilns and power plants as a sale, this too would lead to absurd results and run counter to our interpretation of the same statute in Hervey v. Southern Wooden Box, supra. Under what circumstances would a transfer of tide or possession of Rineco’s personal property not be a resale, if we followed Rineco’s theory? We affirm the trial court on this point.

III. Article of Commerce

Rineco next argues that its purchases of machinery and equipment qualify for the manufacturing exemption under Ark. Code Ann. § 26-53-114(a)(1)(A) (Supp. 1999), which states:

(a) There is specifically exempted from the taxes levied in this subchapter:
(1)(A) Machinery and equipment used directly in producing, manufacturing, fabricating, assembling, processing, finishing, or packaging of articles of commerce at manufacturing or processing plants or facilities in the State of Arkansas ... but only to the extent that the machinery and equipment is purchased and used for the purposes set forth in this subdivision.

(Emphasis added.) Rineco has broken down the statutory definition into five factors that must be established to qualify for the manufacturing exemption. The item must be: (1) machinery or equipment; (2) used in manufacturing; (3) used directly in some stage of the manufacturing process; (4) an article of commerce; and (5) used at manufacturing or processing plants or facilities in Arkansas. We agree that these are the essential elements for the exemption. Because we conclude, that all five elements must be met and, further, that the packaged waste is not an article of commerce, we affirm the chancellor on this point as well.

Rineco initially points out that § 26-53-114(a)(1)(A) does not specifically define what constitutes an “article of commerce.” It acknowledges, however, that Gross Receipts Tax Regulation GR-55(F)(6) of the Arkansas Department of Finance and Administration Rules and Regulations does define the term. Regulation GR-55(F)(6) reads:

An article of commerce includes any property to be placed on the market for retail sale to the general public .... Custom items which are produced for specific customers in response to special orders and which are not readily marketable to the general public are not articles of commerce. (Emphasis added.)

By its terms, DFA Regulation GR-55 (F)(6) contemplates a sale. See also Pledger v. Noritsu America Corp., 320 Ark. 371, 896 S.W.2d 595 (1995).

Again, the pivotal point in our analysis is whether the packaged waste is sold to the cement kilns and power plants. As already discussed, we conclude that a sale did not take place during the audit period. Thus, the purchased machinery and equipment was not involved in the production or manufacture of an article of commerce and does not qualify for the exemption under § 26-53-114(a)(1)(A). Because we decide this point on the failure of Rineco to produce an article of commerce, it is unnecessary for us to reach the issues of whether Rineco’s process equates to manufacturing or whether the packaged waste is marketable to the general public.

Affirmed.

Corbin and Thornton, JJ., dissent.

RAY THORNTON, Justice,

dissenting. There are two issues in this case: (1) whether packaging materials purchased out of state qualify for sale-for-resale tax exemptions, and (2) whether machinery and equipment used in manufacturing an article of commerce qualify for a tax exemption. The majority denies the exemption for packaging materials because of its conclusion that no resale occurs in current market conditions, leaving open the possibility of a tax exemption if the market for the product improves.

The majority then decides that the machinery and equipment purchased out of state and used in manufacturing articles of commerce do not qualify for an exemption under Ark. Code Ann. § 26-53-114(a)(1)(A) (Supp. 1999). This interpretation violates the principles of statutory interpretation and the decisions of the United States Supreme Court, and therefore, I respectfully dissent.

Ark. Code Ann. § 26-53-114(a)(l)(A) provides:

(a) There is specifically exempted from the taxes levied in this subchapter:
(1)(A) Machinery and equipment used directly in producing, manufacturing, fabricating, assembling, processing, finishing,' or packaging of articles of commerce at manufacturing or processing plants or facilities in the State of Arkansas . . . but only to the extent that the machinery and equipment is purchased and used for the purposes set forth in the subdivision.

Id. The basic rule of statutory interpretation is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997). Here, there is no mention of a requirement for a sale, whether profitable or not, to qualify for the exemption.

The majority points out that the five essential elements for the statutory exemption are that the item must be: (1) machinery or equipment; (2) used in manufacturing; (3) used directly in some stage of the manufacturing process; (4) used to make an article of commerce; and (5) used at manufacturing or processing plants or facilities in Arkansas. I agree with the majority that there is no doubt that the Rineco machinery and equipment meet the criteria prescribed by (1), (2), (3), and (5). However, I disagree with the majority’s holding that the product manufactured by Rineco is not an article of commerce.

Perhaps because there is no mention of a sale in Ark. Code Ann. § 26-53-114(a)(l)(A), the majority turns to Regulation GR-55(F)(6) of the Department of Finance and Administration’s (“DFA”) Rules and Regulations for guidance, and cites that rule to suggest that property must be sold to become an article of commerce. That interpretation is flawed.

DFA Regulation GR-55 (F)(6) reads:

An article of commerce includes any property to be placed on the market for retail sale to the general public ...[.] Custom items which are produced for specific customers in response to special orders and which are not readily marketable to the general public are not articles of commerce.

Id. (emphasis added). The DFA regulation upon which the majority relies merely states that an article of commerce “includes any property to be placed on the market for retail sale to the general public.” Id. The regulation simply does not require that an article of commerce must be sold before it becomes an article of commerce.

To the contrary, articles of commerce may include property that is not sold. In Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U.S. 353 (1992), the United States Supreme Court cited with approval its holding from Philadelphia v. New Jersey, 437 U.S. 617 (1978), that “[s]olid waste, even if it has no value, is an article of commerce.” This holding that solid waste is an article of commerce, regardless of value, has also been reaffirmed in Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334 (1992). While articles of commerce may include property placed on the market for sale, the DFA Regulation GR-55(F)(6) simply does not require that a sale must occur before an article of commerce can come into existence.

Because I believe that machinery and equipment utilized by Rineco at its manufacturing plant is clearly entitled to the tax exemption provided by Ark. Code Ann. § 26-53-114(a)(1)(A), I respectfully dissent.

I am authorized to state that Justice CORBIN joins in this dissent.

Corbin, J„ joins.

       $15,519.82 was deducted from the original assessed amount. This amount represented a Saline County tax which both parties agreed was unconstitutional.


source: Caselaw Access Project

author: ANNABELLE Clinton Imber, Justice.

license: Public Domain

text:
    Makybe Shinda HARSHAW v. STATE of Arkansas
    CR 00-1130
    39 S.W.3d 753
    Supreme Court of Arkansas
    Opinion delivered March 8, 2001

      William R. Simpson, Jr., Public Defender, Brett Qualls and Courtney M. Cheney, Deputy Public Defenders at Trial, by; Deborah R. Sailings, Deputy Public Defender, for appellant. .

      Mark Pryor, Att’y Gen., by: Leslie Fisken, Ass’t Att’y Gen., for appellee.
   ANNABELLE Clinton Imber, Justice.

Appellant, Makybe Shinda Harshaw, was charged and convicted of second-degree murder in connection with the shooting death of Casey Cunningham. He was sentenced to twenty years imprisonment. On appeal to the Arkansas Court of Appeals, Mr. Harshaw argued that the trial court erred in failing to instruct the jury, pursuant to his proffer, on the lesser-included offense of manslaughter. The court of appeals agreed with Mr. Harshaw and reversed and remanded for a new trial. Harshaw v. State, 71 Ark. App. 42, 25 S.W.3d 440 (2000). We granted the State’s petition to review the decision of the court of appeals. When we grant a petition for review pursuant to Ark. Sup. Ct. R. 2-4, we treat the appeal as if it were filed in this court originally. Tucker v. Roberts-McNutt, Inc., 342 Ark. 511, 29 S.W.3d 706 (2000); Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). We hold that there was a rational basis for the manslaughter instruction and reverse and remand.

The evidence presented in this case revealed that on or about July 8, 1998, Mr. Harshaw was playing cards and drinking beer with friends at a house in southwest Little Rock. At some point during the night, Mr. Harshaw left the residence to drive a friend home. Upon returning to the house, he found that Mr. Cunningham had arrived at the residence and was standing in the driveway arguing with a woman identified as “Chan.” She was the mother of Mr. Cunningham’s child. Mr. Harshaw took it upon himself to intervene in the argument between Mr. Cunningham and Chan. Mr. Cunningham apparently took offense and told Mr. Harshaw that the matter was none of his business. According to Mr. Harshaw’s testimony and that of other eyewitnesses, Mr. Cunningham then made several statements insinuating that if there was a problem, he would settle it with a gun:

• “Oh, that’s all right. I’ll just go get my gun and shoot it up.”
• “It’ll be some pistol play out here.”
• “I’ll get my nine and shoot this MF up.”
• “If there was a problem, I’d have a gun.”
• “Well, you know, if it was a problem, I’d have my gun and I’d shoot — be shooting it up out here, you know.”
• “K-3 [Casey Cunningham] ain’t no punk. If I got a problem, I just boom boom boom like that. ”

Thereafter, Mr. Harshaw testified that he and Mr. Cunningham both turned and went to their respective cars. Several eyewitnesses stated that Mr. Cunningham reached into his car through the window on the driver’s side of the car. At the same time, Mr. Harshaw went to the trunk of his car, opened it, and retrieved a shotgun. As Mr. Cunningham came back up from reaching into the car, Mr. Harshaw shot him in the chest. Mr. Harshaw testified that he was afraid Mr. Cunningham was about to pull a pistol from his car and shoot him. As it turned out, Mr. Cunningham did not have a gun.

After the presentation of the evidence in this case, the trial court instructed the jury on second-degree murder and justification. Second-degree murder in this context required proof that the accused knowingly caused the death of a person under circumstances manifesting extreme indifference to the value of human fife. Ark. Code Ann. § 5-10-103(a)(l) (Repl. 1997). Mr. Harshaw proffered jury instructions that would have permitted the jury to find him guilty of the lesser-included offense of manslaughter, including the following AMCI 2d 1004 instruction, which is based upon Ark. Code Ann. §§ 5-2-202(3) and 5-10-104(a)(3) (Repl. 1997):

To sustain this charge,' the State must prove beyond a reasonable doubt that:
Makybe Harshaw recklessly caused the death of another person, to wit: Casey Cunningham.
DEFINITIONS
“Recklessly.” —• A person acts recklessly with respect to the results of his conduct when he consciously disregards a substantial and unjustifiable risk that the results will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the same situation.

Mr. Harshaw’s attorney argued to the trial court that, although Mr. Harshaw believed he was justified in the use of deadly force, there nevertheless was evidence from which the jury might determine that he formed this belief recklessly; that is, that he may have acted too quickly in deciding to shoot Mr. Cunningham. The trial court concluded that Mr. Harshaw’s claim of self-defense in shooting the victim included an admission of knowing intent, and was therefore inconsistent with reckless intent. Accordingly, the trial court refused to instruct the jury on the lesser-included offense of manslaughter. From that ruling comes this appeal.

It is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by even the slightest evidence. Spann v. State, 328 Ark. 509, 944 S.W.2d 537 (1997); Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996); Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992). This court will affirm a trial court’s decision to exclude an instruction on a lesser-included offense only if there is no rational basis for giving the instruction. Spann v. State, supra; Sanders v. State, 308 Ark. 112, 805 S.W.2d 953 (1991).

In this case, the jury was presented with evidence that Mr. Harshaw believed he was being threatened with violence when Mr. Cunningham made comments about using a gun if there was a problem. There was testimony that, although Mr. Harshaw thought Mr. Cunningham was going after a weapon when he went to his car and reached inside the driver’s window, Mr. Cunningham was in fact unarmed at the time Mr. Harshaw shot him. There was thus some evidence which could support a finding that Mr. Harshaw acted on the basis of an unreasonable or recklessly formed belief that he needed to use deadly force to protect himself. In addition to precluding acquittal on the basis of self-defense or justification pursuant to Ark. Code Ann. § 5-2-607 (Repl. 1997), recklessness in forming such a belief has the further effect of putting the offense of manslaughter squarely at issue. A long line of Arkansas cases so state:

The plea of self-defense raised the issue of manslaughter because if one acts too hastily and without due care in assaulting another, even though he believes he is about to be assaulted by the other, he is not justified in taking human life and is guilty, of manslaughter.

McCarley v. State, 257 Ark. 119, 124, 514 S.W.2d 391, 394 (1974) (emphasis added). See e.g. Hathcock v. State, 256 Ark. 707, 510 S.W.2d 276 (1974 ); Burton v. State, 254 Ark. 673, 495 S.W.2d 841 (1973); Peters v. State, 245 Ark. 9, 430 S.W.2d 856(1968); Ellis v. State, 234 Ark. 1072, 356 S.W.2d 426 (1962); Halton v. State, 224 Ark. 28, 271 S.W.2d 616 (1954); McGarrah v State, 217 Ark. 186, 229 S.W.2d 665 (1950); Deatherage v. State, 194 Ark. 513, 108 S.W.2d 904 (1937); Vaden v. State, 174 Ark. 950, 298 Ark 323 (1927); Carter v. State, 108 Ark. 124, 156 S.W. 443 (1913); Bruder v. State, 110 Ark. 402, 161 S.W. 1067 (1913); Brooks v. State, 85 Ark. 376, 108 S.W. 205 (1908); Allison v. State, 74 Ark. 444, 86 S.W. 409 (1905).

The State contends that these cases are inapposite because they were decided under a prior version of this state’s manslaughter law. By Act 280 of 1975, the General Assembly adopted the current version of our manslaughter law, which states in pertinent part that “[a] person commits manslaughter if... [h]e recklessly causes the death of another person[.]” Ark. Code Ann. 5-10-104(a)(3) (Repl. 1997). This is the same definition of manslaughter that is set forth in the jury instructions proffered by Mr. Harshaw. Prior to 1975, however, manslaughter was defined in three separate statutes. Ark. Stat. Ann. §§ 41-2207, 41-2208, 41-2209 (1947 and Repl. 1964). Section 41-2207 defined manslaughter generally; whereas, section 41-2208 defined “voluntary manslaughter” and section 41-2209 defined “involuntary manslaughter.” None of those statutes included “reckless manslaughter.” Nevertheless, the rule established by those cases is still good law as evidenced by Ark. Code Ann. § 5-2-614(a) (Repl. 1997), which states:

(a) When a person believes that the use of force is necessary for any of the purposes justifying that use of force under this subchapter but the person is reckless or negligent either in forming that belief or in employing an excessive degree of physical force, the justification afforded by this subchapter is unavailable in a prosecution for an offense for which recklessness or negligence suffices to establish culpability.

In other words, if a person is reckless in forming the belief that the use of force is necessary, he may still be subject to prosecution for an offense that requires a mens rea of recklessness. Reckless manslaughter, pursuant to Ark. Code Ann. § 5-10-104(a)(3), is such an offense.

According to Arkansas Code Annotated § 5-2-202(3) (Repl. 1997), and as stated in the proffered jury instruction, a person acts recklessly:

with respect to ... a result of his conduct when he consciously disregards a substantial and unjustifiable risk that ... the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation[.]

Here, there was at least some evidence which would support a finding that Mr. Harshaw formed his belief in the need for use of deadly force “too hastily and without due care,” or “recklessly,” as that culpable mental state is defined in section 5-2-202(3). Accordingly, a manslaughter instruction was warranted, and the trial court committed reversible error by failing to give the proffered manslaughter instruction.

The State directs us to our prior holding in Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000), in support of its proposition that a manslaughter instruction is never warranted where a justification defense has been asserted because, as part of that defense, the defendant admits to at least knowingly shooting the victim. The State reads our decision too broadly. Our holding in Cobb v. State turned upon the specific facts of that case, which are distinguishable from the facts presendy before us:

In this case, where appellant admitted to shooting the unarmed victim once in the back causing paralysis and shooting the victim a second time while he was incapable of moving or causing harm to appellant, it is clear that a justification defense is inconsistent with the “recklessly causing” element found in the offense of manslaughter. Thus, there was no rational basis for giving the manslaughter instruction and the trial court did not err.

Cobb v. State, 340 Ark. at 246, 12 S.W.3d at 198. In Cobb, there was no evidence that the victim posed either a real or imagined threat. Thus, there was no reasonable basis in the evidence for a jury to conclude that the defendant in Cobb could have formed a belief, recklessly or otherwise, that his life was in danger. In contrast, there was some evidence in this case suggesting that the victim posed a real or deadly threat to Mr. Harshaw. Witnesses testified Mr. Cunningham made threatening remarks and reached for something in this car immediately prior to the homicide. Under these circumstances, the jury could have believed that Mr. Harshaw acted recklessly — too hastily and without due care — in concluding that deadly force was necessary to protect himself, and thus it could have found Mr. Harshaw guilty of manslaughter rather than murder in the second degree.

Reversed and remanded.

       The Arkansas Criminal Code is one of only a few modern codes that follow section 3.09(2) of the Model Penal Code in this respect and treat homicide in imperfect self-defense as a problem of “reckless manslaughter, or of negligent homicide, depending upon whether the defendant’s belief as to the necessity of the homicide was reckless or negligent.” Wayne R. Lafave et al., Substantive Criminal Law § 7.11, at 272 n.6 (1986) (emphasis added). See also the Original Commentary to Ark. Code Ann. § 5-2-614, formerly Ark. Stat. Ann. § 41-514 (Repl. 1977), which states:
      Section 41-514 applies to situations in which force is recklessly or negligently employed. Under such circumstances the defense of justification cannot be successfully interposed in a prosecution for an offense established by proof of reckless or negligent conduct.
      In so providing the Code is aligned with the stance of the Model Penal Code Reporter” “[W]e do not believe a person ought to be convicted for a crime of intention where he has labored under a mistake such that, had the facts been as he supposed, he would have been free from guilt. The unreasonableness of an alleged belief may be evidenced [sic] that it was not in fact held, but if the tribunal was satisfied that the belief was held, the defendant in a prosecution for a crime founded on wrongful purpose should be entitled to be judged on the assumption that his belief was true. To convict for a belief arrived at on unreasonable grounds is, as we have urged, to convict for negligence. Where the crime otherwise requires greater culpability for a conviction, it is neither fair nor logical' to convict when there is only negligence as to the circumstances that would establish a justification.” M.P.C. § 3.09, Comment at 78 (Tent. Drift No. 8, 1958).

      For example, assume a conductor recklessly misconstrues conduct by a passenger on a carrier as a breach of the peace, applies physical force, and injures the passenger. Section 41-514(1) would protect the conductor by permitting him to interpose a defense based on § 41-505(3) to a prosecution for purposeful conduct under § 41-1602 (Battery in the second degree). However, because the conductor acted recklessly in assessing the need to use force, § 41-514(1) withdraws justification as a defense to a prosecution under § 41-1603(b) (Battery in the third degree), since proof of recklessness suffices for conviction of the latter offense.


author: RAY Thornton, Justice. Robert L. Brown, Jucourt interpreted Ark.

text:
    Tony Alan RAY v. STATE of Arkansas
    CR 00-471
    40 S.W.3d 243
    Supreme Court of Arkansas
    Opinion delivered March 8, 2001

      Fields, Tabor, Langston, & Shue, EL.L.C., by: Daniel Shue, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   RAY Thornton, Justice.

Appellant, Tony Alan Ray, shot in the course of burglarizing her home in Van Buren. A sixteen-year-old juvenile at the time of the crime, appellant was charged as an adult with capital murder, burglary, and theft of property, and he was sentenced by jury to life imprisonment without parole. On appeal, appellant argues that the trial court denied his motion for directed verdict based upon the insufficiency of the felony information. Appellant further argues that the trial court should have suppressed his inculpatory statement on the following grounds: (1) that his statement was obtained in violation of Ark. Code Ann. § 9-27-317(g) (2) (A) (ii) (Repl. 1998); (2) that his statement was made involuntarily, and (3) that he had not waived his right to speak to his parent, as prescribed by the above statute. We find no reversible error and affirm.

The sufficiency of the evidence to support a conviction on all counts is not challenged, and only a brief summary of the facts will be provided. On June 24, 1997, Van Burén police officers were called to the home of Lisa Lewis, where they found her dying of multiple gunshot wounds. After making a dying declaration, the victim was transported to the hospital, where she died later that same day. As a result of the victim’s 911 call, appellant and his accomplice were arrested that day alongside Interstate 40 near Dora. Appellant and his accomplice were found in the victim’s automobile, and they were taken to the Van Burén Police Department for questioning.

Detective Mick Molnar of the Van Buren Police Department interviewed appellant regarding the murder of Ms. Lewis. Before the interview, he contacted the prosecuting attorney, who informed the officer that appellant would be charged as an adult. During the questioning, the police officer followed procedures applicable to adults. He provided appropriate Miranda warnings and advised appellant of his right to consult an attorney, but the officer did not afford him the opportunity to talk with his parent, as provided for juveniles by Ark. Code Ann. § 9-27-317(g) (Repl. 1998). At a hearing on appellant’s motion to transfer, the circuit judge stated that appellant was not afforded the benefit of juvenile rights because he was charged as an adult.

Appellant then filed an interlocutory appeal with the court of appeals. Ray v. State, 65 Ark. App. 209, 987 S.W.2d 738 (1999) (“Ray I”). Citing Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993), the court of appeals held that because appellant was prosecuted as an adult, he was subject to the same procedures as prescribed for adults. Ray I, supra. Following this appeal, the case was returned to the trial court, and as a result of a conviction of capital murder by the jury, appellant was sentenced to life imprisonment without parole. Appellant now brings an appeal from this judgment.

I. Felony information

While the first point on appeal is couched as a denial of a motion for directed verdict, the thrust of the assertion of error is the caption of the felony information. Appellant was charged with capital murder, burglary as a class B felony, and theft of property. Count I of the information alleged that appellant and Hinkston, his accomplice, “during the commission of the offense of Burglary and in the course and furtherance of that felony, [caused] the death of Lisa G. Lewis under circumstances manifesting extreme indifference to the value of human life[.]” In Count II, the felony information charged that appellant committed the offense of burglary when he “did enter or remain unlawfully in the residence of Lisa G. Lewis with the purpose of committing the offense of Theft of Property. . .” (emphasis added). Count III of the information alleged that appellant did “take or exercise unauthorized control over the property, an automobile valued in excess of $2,500, of Lisa G. Lewis, with the purpose of depriving the owner thereof.” Appellant never challenged the felony information before trial.

When appellant moved for a directed verdict at the end of the State’s case-in-chief, appellant argued that the State failed to prove the offense of capital murder because there was no offense of “burglary” in Arkansas. He further argued that Arkansas distinguishes between the offenses of residential burglary and commercial burglary, and that the information was void for vagueness. Appellant’s counsel stated:

As to Count I, Capital Murder, our first motion for a directed verdict deals with the charge, itself. The information alleges that during the commission of a burglary[J it’s the defense’s position, that there is no charge of burglary in the State of Arkansas. When the legislature met in 1993, under Acts 442 and 552, they created the acts of commercial burglary and residential burglary. Those are the two criminal offenses in Arkansas. There is no criminal offense of burglary, anymore. For that reason, it is void for vagueness; that it does not apprize [sic] a person of ordinary intelligence of what the law in the State of Arkansas is, because there is no offense of burglary.

The State responded by stating that the felony information refers to residential burglary because the information refers to the act of entering and remaining “in the residence of Lisa G. Lewis” for the purpose of stealing property. The trial court denied appellant’s motion. Appellant renewed his motion on the same grounds at the close of the evidence, and the court again denied his motion.

Here, appellant does not attack the sufficiency of the evidence to support a conviction, but argues that the offense was not properly captioned in the information. Appellant admits in his brief that “[t]here is no doubt that the State proved the elements of Residential Burglary[.]” Appellant draws a distinction between residential burglary and commercial burglary. See Ark. Code Ann. § 5-39-201(a)(1), (b)(1) (Repl. 1997). The felony information under which appellant was charged clearly states that appellant and his accomplice entered Ms. Lewis’s residence and that the offense was a class B felony.

A nonjurisdictional challenge to the sufficiency of an information must be raised prior to trial to be preserved for appellate review. McNeese v. State, 334 Ark. 445, 976 S.W.2d 373 (1998); Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997). A directed-verdict motion is not a substitute for a timely-made motion to dismiss an allegedly insufficient information. See Williams v. State, 331 Ark. 263, 962 S.W.2d 329 (1998). Appellant’s attempt to challenge the information was untimely, and more importantly, appellant could have requested that the State file an amended complaint prior to trial. For these reasons, we affirm the trial court’s denial of appellant’s directed-verdict motion.

II. Arkansas Code Annotated § 9-27-3I7(g)(2)

We next address the question whether the provisions of Ark. Code Ann. § 9-27-317(g)(2) (A) (ii) are applicable to a juvenile whom the prosecuting attorney has exercised his discretion to charge as an adult. This issue was raised during the interlocutory appeal in Ray I, supra, and was resolved on the basis of our holding in Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993), where we stated that the section of the juvenile code requiring parental consent to a waiver, found in Ark. Code Ann. § 9-27-317, is limited to proceedings in the juvenile division of chancery court. Id.

At the outset, we note that the prosecuting attorney has the discretion to decide whether charges brought against a sixteen-year-old shall be brought in juvenile court, or whether the offender shall be tried as an adult in circuit court. Ark. Code Ann. § 9-27-318 (Repl. 1998). The statute provides in relevant part:

A circuit court and a juvenile court have concurrent jurisdiction and a prosecuting attorney may charge a juvenile in either court when a case involves a juvenile:
(1) At least sixteen (16) years old when he engages in conduct that, if committed by an adult would be any felony ...[.]

Id. We have held that the General Assembly has not based court assignment in juvenile court upon the nature of the offense but upon what the prosecutor chooses to charge. Walker v. State, 309 Ark. 23, 827 S.W.2d 637 (1992).

The legislature has distinguished the rights of those juveniles charged as adults from the more expansive rights available in juvenile proceedings, and we have adopted the general rule that statutes expressing the rights of juveniles in juvenile court are not applicable to juvenile defendants being tried in circuit court. In Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), we stated:

The legislature recognized in Ark. Code Ann. § 9-27-318(c) (Repl. 1993) that a juvenile over the age of sixteen may be prosecuted as an adult where his act would constitute a felony if committed as an adult. This is an acknowledgment that an older juvenile who commits a serious crime may not receive the protection of juvenile proceedings, but will face the consequences as an adult. The same rationale applies to the statute at hand. A juvenile over the age of sixteen who commits a crime that would subject him to adult punishment will not be accorded the protection of full parental involvement in the interrogation process.

Id. (emphasis added).

We have also held that the Arkansas Juvenile Code does not refer to proceedings in circuit court, but rather, it applies only to proceedings in juvenile court. Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995). In Ring, supra, we affirmed the denial of the juvenile’s motion to transfer, and in determining whether the protections of Ark. Code Ann. § 9-27-317(f) were afforded to the juvenile in that case, we concluded:

In Boyd [v. State, 313 Ark. 171, 853 S.W.2d 263 (1993)], this court stated that when a prosecutor chooses to prosecute a juvenile in circuit court as an adult, the juvenile becomes subject to the procedures and penalties prescribed for adults. . . . [T]he failure of the law enforcement officers to obtain the consent of appellant’s parents to his waiver of right to counsel, as required by section 9-27-317, does not bar admission of appellant’s confession.

Id. (emphasis added).

Applying these well-established principles to the present case, the prosecutor had the authority and the discretion to charge and try appellant as an adult. Before Detective Mick Molnar began any questioning, he called the prosecuting attorney to find out whether he should follow the procedures applicable to juvenile cases, or whether he should treat appellant as an adult. At the suppression hearing, Detective Molnar testified that, before he interviewed appellant, the deputy prosecutor informed him that appellant would be charged as an adult. Detective Molnar testified:

I did not know how old the defendant was at that time. He was approximately fifteen, sixteen. That was a factor that I was concerned about, as far as going through correct procedures. When I knew that I would be interviewing Mr. Ray, I had contacted the prosecutor’s office. I wanted to make sure because of the nature of the crime if we were going to use a juvenile rights form or adults rights form.
There’s a difference between the two forms. With the juvenile rights form, the person is allowed to speak with his parents prior to any questioning. The parents also sign the form. I was advised that Tony Ray was going to be charged as an adult, with his past history, the nature of the crime. Prosecutor McCune of the prosecutor’s office advised me of that.

Detective Molnar further testified, “If the subject was being charged as a juvenile and says they want to speak to their parents, then I would have stopped questioning at that point. ... I clearly understood that he did request to speak to his father before I got into what I would call the gist of the interview.” As a result of the prosecuting attorney’s exercise of his discretion to charge appellant as an adult, Detective Molnar used the adult form, as opposed to the juvenile form, during his questioning, and despite appellant’s requests to see his father, Detective Molnar denied those requests because he was advised that appellant would be tried as adult. The detective testified that if he had thought that appellant would have been tried as a juvenile, he would have stopped his line of questioning.

Our inquiry now turns to the question whether appellant, who was charged as an adult, had the right to have his parent present during his custodial interrogation. The United States Supreme Court has held that a juvenile only has a constitutional right to speak to an attorney during questioning. Fare v. Michael C., 442 U.S. 707 (1979) (holding that a juvenile does not have a constitutional right to speak to his probation officer). Although it is not required by the Constitution, the Arkansas General Assembly has given juveniles the statutory right to speak to a parent or guardian or to have one present during questioning, pursuant to Ark. Code Ann. § 9-27-317 (g)(2) (A) (ii). The statute provides in pertinent part:

(2) (A) No law enforcement officer shall question a juvenile who has been taken into custody for a delinquent act or criminal offense if the juvenile has indicated in any manner that he:
* * *
(ii) Wishes to speak with a parent or guardian or to have a parent or guardian present[.]

Id. We have also held that police officers are not required to inform juveniles of this statutory right under Ark. Code Ann. § 9-27-317(g)(2)(A)(ii). Miller v. State, 338 Ark. 445, 994 S.W.2d 476 (1999).

The fundamental issue here is whether the statutory right to have a parent present during questioning extends to juveniles in both circuit and juvenile courts. In prior case law, we have made some observations as to the possible extension of Ark. Code Ann. § 9-27-317(g)(2) to circuit court proceedings. In Conner v. State, 334 Ark. 457, 978 S.W.2d 300 (1998), a case in which a seventeen-year-old juvenile was tried as an adult, the question was whether the trial court should have suppressed his statements to the police because his mother did not consent to his waiver of his right to counsel. We affirmed the trial court’s ruling that Conner’s statements should not be suppressed because “there [was] no evidence that Conner himself invoked his statutory right to have a parent or guardian present during questioning.” Id. We made it clear that the rights provided in the subsection must be exercised by the juvenile, and held that the juvenile had not attempted to exercise the statutory rights set forth in Ark. Code Ann. § 9-27-317 (g)(2):

No law enforcement officer shall question a juvenile who has been taken into custody for a delinquent act or criminal offense if the juvenile has indicated in any manner that he . . . [w]ishes to speak with a parent or guardian or to have a parent or guardian present.

Conner, supra. Although it was not necessary for the disposition of the case, we then observed in obiter dictum that “a juvenile has the right to speak to a parent or have a parent present during questioning in juvenile and criminal proceedings.” Id. (emphasis added).

The statutory right afforded under Ark. Code Ann. § 9-27-317(g)(2) was not an issue in Conner, supra, and was not raised by either Conner or his mother. While Conner’s mother, not a party to the proceedings, complained that she was not allowed to speak to her son, her complaint was addressed to the issue of coercion and the voluntary nature of the incriminating statements made by Conner. Id.

The observation in Conner, supra that Ark. Code Ann. § 9-27-317(g)(2) would have given Conner the right to have a parent present, if he had made that request, was based upon Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996), where we specifically declined to determine whether the provisions of Ark. Code Ann. § 9-27-317(g)(2) applied to adult proceedings. We said: “If the provisions of subsection (g) apply beyond the juvenile forum, they were not involved here.” Isbell, supra. In Conner, the issue was decided by pointing out that appellant had not requested to talk with his parents, and that his mother had no standing to invoke the provisions of Ark. Code Ann. § 9-27-317 (g)(2). Nevertheless, we made the observation in obiter dictum that “a juvenile has the right to speak to a parent or have a parent present during questioning in juvenile and criminal proceedings.” Conner, supra (emphasis added).

This observation, suggesting that Ark. Code Ann. § 9-27-317(g)(2) should apply to criminal proceedings, is based upon an interpretation of the phrase, “taken into custody for a delinquent act or criminal offense,” in Conner, supra, as a reflection of legislative intent that this statute should apply to criminal proceedings in adult cases. However, both juvenile courts and circuit courts have concurrent jurisdiction over a delinquent act and criminal offense when a sixteen-year-old juvenile commits a felony. See Ark. Code Ann. § 9-27-318 (b)(1). Secondly, this concurrent jurisdiction does not require that all criminal offenses be tried in circuit court. In fact, the statute provides that the trial of delinquent acts and criminal offenses may be transferred from one court to another. See Ark. Code Ann. § 9-27-318(c)-(e). Third, the prosecuting attorney has discretion to decide whether such a criminal offense is to be tried in juvenile court or in circuit court under Ark. Code Ann. § 9-27-318(c), and in the case before us, the prosecutor had exercised his discretion to try appellant as an adult before any interrogation began.

The dissent contends that this observation in Conner, supra, must be accorded the full weight of stare decisis in interpreting Ark. Code Ann. § 9-27-317(g)(2), but does not deal with the long line of precedent in which we have clearly and directly held that a juvenile charged as an adult is subject to the procedures applicable to adults. Ring, supra; see also Misskelley, supra. The dissent also calls our attention to another distinction between Conner, supra, and this case: “[a]fter giving a statement to police officers, he [Conner] was charged as an adult . . . [.]” Unlike the facts presented in Conner, supra, the prosecuting attorney in this case had already exercised his discretion to charge appellant as an adult before any statement was given.

We have consistently held that the provisions of the juvenile code are not applicable to adult proceedings in circuit court. Our interpretation limiting the effect of Ark. Code Ann. § 9-27-317 to juveniles has been in effect for many years. The legislature has had the opportunity to extend this right to adult proceedings, but it has not done so. We are not called upon to reverse our holding in Conner, supra, but only to correct an obiter dictum observation about the interpretation of Ark. Code Ann. § 9-27-317(g)(2). We hold that the provisions of Ark. Code Ann. § 9-27-317(g)(2) are applicable only to matters being considered by the juvenile court. Denying a sixteen-year-old, whom the prosecuting attorney chose to charge as an adult, a right applicable only to juvenile proceedings was not in error.

III. Voluntariness of appellant’s statement

Appellant argues that his statements should have been excluded as involuntary because Detective Molnar made a false promise to him. He first made this assertion in his argument at the close of the suppression hearing. During the first interview at 6:20 p.m. on the evening of June 24, 1997, the following colloquy occurred:

APPELLANT: I mean I just wanted to get out of my house. I don’t like it there.
Detective Molnar: Things bad at your house? Is that why you did this?
Appellant: I can’t tell no one. I don’t know. I just don’t want to live there.
Detective Molnar: Why?
Appellant: I just don’t.
Detective Molnar: Is someone beating on you or hurting you?
Appellant: It’s a long story.
Detective Molnar: Well, I’ve got time if you want to talk about it. Do you want to talk about it? I mean now, Tony, I’m here to help you, too, if I can, okay?
Appellant: Yeah, but I didn’t know that I’d go to prison for this stuff though.
DETECTIVE Molnar: Tony, if you break the law, you know. You can’t keep breaking the law and breaking the law and breaking the law and expecting nothing to happen.
Appellant: I know, but —
Detective Molnar: You [uc] sixteen, fou’re almost an adult, you know. You’re not a dummy. I think you know exactly what’s going on. But, good gosh, man, I mean sometime in your life you have to be responsible and take responsibility for your actions. You know the best thing is what you’re doing now, is standing up and taking responsibility for what happened. You know, let’s get this behind you and get it taken care of. That’s what we’re doing here. But if there’s a problem and something is going on at home and if you want to talk to me about that, that’s fine. You know I’ll do whatever I can to help you. If you don’t want to talk to me now about it and if you want to talk to me at a later date you can call down here at the police department and meet you somewhere and talk to you.
Appellant: So, I don’t have talk about that right now?
Detective Molnar: If you don’t want to. it’s up to you, but I’m giving you that opportunity if you’d like to. Would you like to do that?
APPELLANT: I just would rather wait.

In reviewing the voluntariness of a confession, we “make an independent review of the totality of the circumstances and reverse only if the trial court’s finding is clearly against the preponderance of the evidence.” Hurst v. State, 296 Ark. 448, 757 S.W.2d 558 (1988); Sherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988). The credibility of the witnesses who testify to the circumstances surrounding the defendant’s custodial statement is for the trial court to determine. Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1992); Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985).

We find no error in the trial court’s finding that Detective Molnar did not promise appellant leniency for confessing that he had shot the victim. In fact, the above exchange occurred after appellant had confessed to shooting the victim. It appears that Detective Molnax, in his offer to help, referred to appellant’s alleged abuse in his home. Appellant declined to discuss the “long story,” and the trial court did not err in finding that he was not enticed to speak to Detective Molnar by any alleged promise made to appellant. Appellant failed to show that a false promise was made in connection with any proposal of lenient treatment in exchange for a statement, and therefore, we affirm the trial court’s ruling.

IV Waiver of rights

At the end of the suppression hearing, appellant claimed that his statements to Detective Molnar should have been suppressed because he was not advised of his right to have his parents present under Ark. Code Ann. § 9-27-317 when he spoke with Detective Molnar. Appellant now argues that because he was not advised of this right, he did not validly waive his rights.

We have addressed these considerations under appellant’s second point on appeal. The right to have a parent present during questioning is a statutory right and not a constitutional right. Miller, supra. Thus, this statutory right is not a part of the Miranda warnings, and we have held that the police do not have a duty to inform the juvenile of such right. Miller, supra. Because appellant was charged as an adult in circuit court, the police were not required to stop questioning until a parent was present or to obtain parental consent to appellant’s waiver of his right to counsel. Isbell, supra. Appellant’s attempt to reargue this point is unavailing, and we affirm the trial court’s ruling.

V Rule 4-3(h)

In accordance with Ark. Sup. Ct. R. 4-3 (h) (1998), the record has been reviewed for all objections, motions, and requests made by either party that were decided adversely to appellant, and no reversible errors were found. Accordingly, we affirm appellant’s judgment of conviction and sentence imposed.

Affirmed.

Corbin, Brown, and Imber, JJ., dissent.

Robert L. Brown, Jucourt interpreted Ark.

On October 8, 1998, this court interpreted Ark. Code Ann. § 9-27-317 (g)(2) (Repl. 1998), to require that when a juvenile requests to speak with a parent while in custody for a criminal offense, that request must be granted. See Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998). In Conner, the 17-year-old boy involved, Corey Jermo Conner, had been taken into custody, and his mother asked to speak to him. The request was denied. Conner never made a similar request to speak to his parents. After giving a statement to police officers, he was charged as an adult with capital murder, convicted, and sentenced to life imprisonment without parole. We said in Conner as part of our holding:

In contrast, Ark. Code Ann. § 9-27-317(g)(2) provides that, “[n]o law enforcement officer shall question a juvenile who has been taken into custody for a delinquent act or criminal offense if the juvenile has indicated in any manner that he ... [w]ishes to speak with a parent or guardian or to have a parent or guardian present” (emphasis added). Thus, unlike the right to parental consent to a waiver, a juvenile has the right to speak to a parent or have a parent present during questioning in juvenile and criminal proceedings. See Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996). The juvenile, however, and not the parent or guardian must invoke this statutory right. Id. Although there is evidence in the record that Conner’s mother requested to speak to her son, there is no evidence that Conner himself invoked his statutory right to have a parent or guardian present during questioning. Accordingly, we find no merit to this point on appeal.

334 Ark. at 465-66, 982 S.W.2d at 659.

We, thus, made it clear in Conner in no uncertain terms that under § 9-27-317 (g)(2), a juvenile had the right to speak to a parent during questioning, whether the resulting proceeding was a delinquency proceeding in juvenile court or a felony trial in circuit court. In other words, the right to call a parent exists regardless of whether the juvenile is ultimately tried as a juvenile or an adult. We even italicized “a delinquent act” or “criminal offense” in Conner to emphasize the point. Interpreting the statute as we did was a necessary part of our holding. Had Conner’s rights under § 9-27-317(g)(2) not been available when he was charged as an adult, there was no reason for us to hinge our decision on his failure to ask to speak to a parent.

Tony Alan Ray, in contrast, did ask to speak to his father at the beginning of his interrogation, and that statutory right was denied him. Now, two and a half years later, the majority reverses itself and backs up on our statutory interpretation in Conner. In doing so, the majority says that our statutory interpretation which was essential to our holding on one issue was only an “observation.” I cannot agree to retract our decision in Conner in this case which raises the same issue. This court’s statutory interpretation is precedent for the trial courts of this State as well as the court of appeals. We, of course, have the right to override our decisions but to do so in this case undercuts the stability of our common law and leads to decisions which are made on a case-by-case basis.

This court has been eloquent in discussing our adherence to precedence and the doctrine of stare decisis:

Precedent, it is said, should not implicitly govern, but discreetly guide. The policy of adhering to precedent, or the doctrine of stare decisis, is fundamental to the common law. Precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable. The court in Parish [ v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968)], setting out the test for determining whether a case should be overruled, stated the following:
Having determined as we have here that a rule established by precedent no longer gives a just result it must then be determined whether the rights of those who have justifiably relied upon the established precedents are of greater weight in this case than that the rule be corrected. The test is whether it is more important that the matter remain settled than that it be settled correctly.
In more recent decisions, this court has stated that there is a strong presumption of the validity of prior decisions. The court in Sanders v. County of Sebastian, 324 Ark. 433, 922 S.W.2d 334 (1996), stated:
While we do have the power to overrule a previous decision, it is necessary, as a matter of public policy, to uphold prior decisions unless a great injury or injustice would result. The United States Supreme Court has recognized that adherence to precedent promotes stability, predictability, and respect for judicial authority.

McGhee v. State, 334 Ark. 543, 545-46, 975 S.W.2d 834, 835 (1998) (internal citations omitted).

The Conner decision has been part of our common law for only two and a half years. The General Assembly did not see fit to pass legislation to overturn Conner in the 1999 session, which it readily could have done if it considered our interpretation in Conner to be contrary to legislative intent. We have said that this may be some indication of tacit approval of our decision by that body. See, e.g., Chamberlin v. State Farm Mut. Auto Ins. Co., 343 Ark. 392, 36 S.W.3d 281 (2000); Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991).

In response to this dissent, the majority opinion continues to confuse waiver of a juvenile’s right to counsel without parental consent and a juvenile’s right to speak to a parent. Identical Acts 67 and 68 of 1994 repealed the parental waiver requirement but then added the juvenile’s right to speak to a parent regardless of whether the questioning related to a delinquent act or criminal offense (§ 9-27-317(g)(2)). The majority’s confusion is compounded by its continued citation to Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996); Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995); and Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993), all of which dealt with parental waiver which now has been repealed. None of these cases concern the new right inserted in Acts 67 and 68 to speak to a parent. Our decision in Conner v. State, supra, makes this distinction clear.

Unbelievably, the majority, again in response to the dissent, asserts that our statutory interpretation in Conner was mere dictum and had no precedential value. If this court had believed that, why did we address the issue of a juvenile’s right to speak to a parent in the first place? It would have been a simple matter to have merely held that the right does not attach if the juvenile is charged as an adult. We did not do that. Instead, we held: “Thus, unlike the right to parental consent to a waiver, a juvenile has the right to speak to a parent or have a parent present during questioning in juvenile and criminal proceedings.” Conner, 334 Ark. at 465, 982 S.W.2d at 659. We then held in Conner that the son had to invoke the right — not the mother, and because the son did not ask to speak to a parent, the point on appeal had no merit.

What is now inescapable is that the right to speak to a parent is afforded a juvenile whether the matter ultimately ends up in juvenile court or circuit court. Identical Acts 67 and 68 of 1994 provide that, and our decision in Conner drives the point home.

I would adhere to precedent and exclude the two statements given by Ray where he invoked his statutory rights. To do otherwise runs directly contrary to our pronouncements on stare decisis. I respectfully dissent.

Corbin and Imber, JJ., join.

       The statute was amended by Act 1192 of 1999, and the pertinent section of the statute is now designated as Ark. Code Ann. § 9-27-317(h)(2)(A)(ii) (Supp. 1999). Because the former designation of the statute was in effect at the time of the offense here, and because it is used in the record and in the briefs, we will use the former designation of the statute. The 1999 amendment did not alter the substance of this section of the statute.

       The statute was amended by Act 1192 of 1999, and the pertinent section of the statute is now designated as Ark. Code Ann. § 9-27-318(c)(l) (Supp. 1999). Because the former designation of the statute was in effect at the time of the offense here, and because it is used in the record and in the briefs, we will use the former designation of the statute. The 1999 amendment did not alter the substance of this section of the statute.

       Act 1192 of 1999 redesignated § 9-27-317(g) as § 9-27-317(h).


author: JIM HANNAH, Justice.

text:
    Rick MARCUM, et al. v. Matt WENGERT, et al.

    00-828
    40 S.W.3d 230
    Supreme Court of Arkansas
    Opinion delivered March 8, 2001

      The Evans Law Firm, P.A., by: Marshall Dale Evans and Robert D. Brandon, for appellants.

      Conner & Winters, P.L.L.C., by: John R. Elrod and Vicki Bronson, for appellees.
   JIM HANNAH, Justice.

This case is here on a petition for review filed by Appellants Rick Marcum, individually and as President of Phi Kappa Tau Housing Corporation, Anthony Capo, individually and as Vice President of Phi Kappa Tau Housing Corporation, and Phi Kappa Tau Housing Corporation (PKT Housing Corporation). The appellants appeal the trial court’s determination that they were not the prevailing parties and denial of their request for attorney’s fees and court costs. Appellees Matt Wengert, Paul Wengert, and Angie Wengert (collectively referred to as the Wengerts) cross-appeal arguing that the trial court erred in failing to grant their motion for judgment as a matter of law on the basis that Marcum lacked authority to prosecute the original claim for PKT Housing Corporation. We reverse and remand on appeal and affirm on the cross-appeal.

Facts

This case involves a landlord/tenant dispute. In the summer of 1994, the Fayetteville chapter of Phi Kappa Tau Fraternity, a national collegiate fraternal social organization, began looking for a fraternity house for its members. The national fraternity created Phi Kappa Tau Housing Corporation, a non-profit Arkansas corporation, to allow the fraternity to enter into a housing lease agreement for its members.

PKT Housing Corporation leased a house for a term of six months from the Wengerts for use as a fraternity house. The six-month lease agreement was signed on August 24, 1994, at a rate of $210 per occupant, but no less than $4,000 per month, commencing on August 26, 1994, and expiring on February 25, 1995. Angie and Matt Wengert signed the lease on their behalf, and Marcum signed it as president and Capo signed it as vice-president of PKT Housing Corporation. PKT Housing Corporation also made a $4,000 deposit as required by the lease.

Despite the commencement of the lease on August 26, 1994, the fraternity members were not b¿ able to move into the residence until September 17, 1994, when' the City of Fayetteville finally issued an occupancy permit to the Wengerts. As such, the members had to find temporary housing until September 17, 1994, although rent had already been paid for that time. A dispute existed about whether the Wengerts agreed to give the fraternity a credit for this lost time.

During the lease, the Wengerts and PKT Housing Corporation entered into a separate agreement whereby Angie Wengert would purchase furniture to furnish the common living areas on the first floor of the fraternity house, and PKT Housing Corporation would reimburse the Wengerts. Plaintiffs Exhibit 16 indicated that an estimated $10,500 was spent to furnish the common areas of the house. PKT Housing Corporation paid the Wengerts $10,500 for the furniture.

The fraternity occupied the house through the lease period, and continued to occupy the house under the lease terms on a month-to-month basis, but without a new lease agreement, after the expiration of the original lease term on February 26, 1995. Apparently, the parties remained in negotiations regarding the renewal of the lease for the fall 1995 school term.

After the spring school term ended in May 1995, most of the fraternity members left for the summer, although some remained in the house and continued to pay rent. All of the furnishings owned by PKT Housing Corporation remained in the house.

During the first week of August, 1995, Marcum and Capo met with Angie Wengert and the building contractor about renovations to the house, but the lease was not discussed. According to Mar-cum’s testimony at trial, he and Capo were surprised when, several days later, they returned to the house to see if the kitchen repairs were proceeding, and they found a “For Lease” sign in the front yard and no work had been done to the kitchen. According to Marcum, Angie Wengert notified him that they would not be leasing the building to the fraternity again, but that the Wengerts were amenable to giving the fraternity some time to arrange to have the new furniture moved. Marcum testified that he began making arrangements to have the furniture moved, but several days later, Capo called Marcum and told him that Matt Wengert had given the fraternity fifteen minutes to remove the furniture from the premises or it would be considered “abandoned” and forfeited, and the furniture would become the property of the Wengerts pursuant to paragraph seventeen of the lease. The appellants did not remove the furniture from the house. The Wengerts refused to return the furniture or the deposits to PKT Housing Corporation.

After the dispute in August 1995, Marcum, who was still on the board of the PKT Housing Corporation, approached an attorney about the forfeiture of the furniture. Shortly thereafter, Mar-cum and Capo disassociated from PKT Housing Corporation and the fraternity, but continued to pursue the legal action, arguably at the direction or with consent of the PKT Housing Corporation. There is no evidence in the record that indicates that the housing corporation did not want Marcum to pursue the legal action on behalf of the housing corporation against the Wengerts. On February 16, 1996, PKT Housing Corporation filed its complaint for replevin, claiming that the Wengerts converted its property and also for return of the security deposit. PKT Housing Corporation later amended its complaint, requesting $10,000 for the furniture, twice the amount of the security deposits, and for punitive damages in the amount of $100,000. PKT Housing Corporation also requested attorney’s fees and costs.

The Wengerts timely answered the original and amended complaints, denying the allegations set forth therein and alleging that the personal property had been abandoned pursuant to the terms of the lease. They then counterclaimed against the National PKT Fraternity and PKT Housing Corporation and, in fact, named Marcum and Capo as the representatives of the PKT Housing Corporation in the counterclaim. The Wengerts also filed third-party complaints against Marcum and Capo individually. The Wengerts complained that PKT Housing Corporation breached the lease in several respects. The Wengerts also included Marcum and Capo individually in these claims as third-party defendants, and claimed from all three in excess of $40,000 in damages, as well as attorney’s fees and costs for breach of the lease. Ultimately, the trial court allowed PKT National Fraternity to be dismissed from the case with prejudice in an order filed April 29, 1998.

The trial in this matter began on August 27, 1998. During Marcum’s testimony, a motion for judgment as a matter of law was made by the Wengerts’ attorney regarding whether Marcum had standing to pursue the original action by PKT Housing Corporation against the Wengerts. The Wengerts argued that Marcum did not have standing to sue on behalf of PKT Housing Corporation because from the time the lawsuit was filed by PKT Housing Corporation until the time of trial, Marcum was neither a member of the board of the PKT Housing Corporation nor was he involved with the fraternity anymore.' The trial judge denied the motion to dismiss the action, finding that only the corporation’s shareholders and members had standing to challenge any action taken by Mar-cum on behalf of the PKT Housing Corporation.

The matter was submitted to the jury on eight interrogatories. The jury found that in the lawsuit by PKT Housing Corporation against the Wengerts, the Wengerts were liable to PKT Housing Corporation in the amount of $8,500 for the tort of conversion of the furniture property and $4,000 for breach of the lease agreement. In the Wengerts’ third-party complaints against Marcum and Capo individually, the jury found in favor of third-party defendants Mar-cum and Capo, and determined that they were not liable for any of the alleged $40,000 in damages. In the Wengerts’ counterclaim against PKT Housing Corporation, the jury found that the fraternity was liable to the Wengerts for $2,000 in damages. The trial court entered these interrogatories as a judgment on November 10, 1998, and then issued a letter opinion regarding the supplemental issue of attorney’s fees filed by the parties. In this letter, the trial judge found that none of the parties were “prevailing parties” as required to recover under either the applicable attorney’s fees statute or under the lease agreement, which included a term providing for attorney’s fees and costs for an action on the contract.

PKT Housing Corporation, Marcum, and Capo appealed the trial court’s denial of attorney’s fees and costs. The Wengerts cross-appealed on the trial court’s denial of their motion for judgment as a matter of law.

Standard of Review

When we grant a petition to review a case decided by the court of appeals, we review all of the issues raised in the court below as if they were originally Hied in this court. Youngman v. State Farm Mut. Auto. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998); Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997). A trial court is not required to award attorney’s fees and, because of the trial judge’s intimate acquaintance with the trial proceedings and the quality of service rendered by the prevailing party’s counsel, we usually recognize the superior perspective of the trial judge in determining whether to award attorney’s fees. Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000); Chrisco v. Sun Industries Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). The decision to award attorney’s fees and the amount to award are discretionary determinations that will be reversed only if the appellant can demonstrate that the trial court abused its discretion. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998); Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993). A grant of attorney’s fees is an issue within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Id.

I. Attorney’s Fees

The first issue for the court to determine is whether the trial court erred in denying attorney’s fees to Marcum, Capo, and PKT Housing Corporation. As part of this determination, this court must consider whether the trial court erred in deciding there were no “prevailing parties” in this lawsuit, and if error occurred, whether attorney’s fees should have been awarded either under Ark. Code Ann. § 16-22-308 (Repl. 1999) or under the terms of the lease agreement.

A. Prevailing Party

The threshold issue is whether the trial court erred in determining that no one was a “prevailing party” in this case. After the jury returned its verdict by interrogatories on August 29, 1998, the trial judge in a letter dated November 9, 1998, addressed in part the remaining issue of attorney’s fees and determined that fees were not due Marcum, Capo, and PKT Housing Corporation because neither they nor the Wengerts were the “prevailing party” in the action. The trial court stated:

Plaintiff maintains it is entitled to recover an attorney’s fee under either the provisions of A.C.A. § 16-22-308 or the terms of the parties’ lease agreement providing for same.
Under either theory of recovery, a party seeking entitlement to a fee must be the prevailing party. Here, Plaintiff received more money under the jury’s verdict than Defendants, and as Plaintiff argues, could be considered the prevailing party. However, Plaintiff, in its amended complaint, sought at least $110,000 in damages, recovered $8,500 on its conversion theory and $2,000 on its breach of contract claim, thus hardly prevailing on its original claim.
On the other hand, Defendants claimed damage in excess of $40,000 in their counterclaim and obtained a net verdict of $2,000 — a far cry from their sought after recovery, but nonetheless a recovery.
Plaintiff seeks an attorney’s fee and costs amounting to $54,432.69 and Defendants maintain they have expended in excess of $20,000 defending Plaintiffs claims and prosecuting their counterclaim. This case involves claims by Plaintiff for conversion and breach of contract and counterclaim by Defendants for breach of contract. This is a simple case, neither complicated by facts nor esoteric questions of law. It is exceedingly difficult to imagine why, in a case of this nature, a litigant would authorize the expenditure of sums anywhere near those now claimed by Plaintiff, or for that matter, paid by the Defendants.
Prevail is defined as being victorious. See Webster’s, 1989 ed. Certainly neither Plaintiff nor Defendants have been victorious. In my judgment, neither party, as a matter of law, prevailed in this action and accordingly, no fees or costs will be awarded.

Clearly, the trial judge decided that no party was the “prevailing party” because they did not recover anywhere close to the amount of damages they were seeking. However, the trial court erred in basing his determination of who prevailed on the amount each party recovered under their claims. Instead, under Arkansas law, the prevailing party is determined by who comes out “on top” at the end of the case. This court provided the most recent discussion of the term “prevailing party” in Burnette v. Perkins & Associates, 343 Ark. 237, 33 S.W.3d 145 (2000), with regard to its application under Ark. Code Ann. § 16-22-308. While the issue in Burnette was whether there is a prevailing party in a case that is dismissed without prejudice before reaching the merits, the language regarding the term “prevailing party” is useful. The Burnette court determined that in order to be a “prevailing party,” one must prevail on the merits of the lawsuit.

The Burnette court further cited to Gill v. Transcription, Inc., 319 Ark. 485, 982 S.W.2d 258 (1995), which referred to ERC Mortgage Group, Inc. v. Luper, 32 Ark. App. 19, 795 S.W.2d 362 (1990), in which this court and the court of appeals also discussed “prevailing party.” In Gill, this court quoted Luper, adopting the court of appeal’s reasoning on that issue. The Gill court stated:

In Luper, the Court of Appeals held that the plaintiff was the prevailing party under the statute, although six of the seven counts in his complaint were dismissed at the close of his case-in-chief. The court quoted with approval from a Missouri case:
[tjhere can be but one prevailing party in an action at law for the recovery of a money judgment. It transpires frequendy that in the verdict each party wins on some of the issues and as to such issues he prevails, but the party in whose favor the verdict compels a judgment is the prevailing party. Each side may score but the one with the most points at the end of the contest is the winner, and ... is entitled to recover his costs.
32 Ark. App. at 19, 795 S.W.2d at 364, 365, quoting Ozias v. Haley, 125 S.W. 556, 557 (Mo. App. 1910).

Gill, 319 Ark. at 489-490. Using this language, this court must analyze each cause of action and subsequent award by the jury to determine who was the prevailing party in the case. In this case, there were actually four different claims: PKT Housing Corporation made a claim against the Wengerts for conversion of furniture property, breach of the lease contract, and for forfeiture of their deposits. The Wengerts counterclaimed against PKT Housing Corporation for breach of the lease contract and damages to the property. The Wengerts also complained against Marcum and Capo individually for the breach of the lease contract and damages to the property. According to the jury’s verdict by interrogatories, it found that PKT Housing Corporation prevailed over the Wengerts on its claims for conversion and for breach of the lease in the amounts of $8,500 and $4,000 respectively. The jury then found that Marcum and Capo in their individual capacities prevailed in defending the third-party claims against them by the Wengerts. Finally, the jury found that the Wengerts were entitled to recover $2,000 in their counterclaim for damages against PKT Housing Corporation. As such, it is clear that Marcum and Capo, individually, were the prevailing parties in the actions against them filed by the Wengerts, and that PKT Housing Corporation bested the Wengerts in claims for damages under the lease agreement. As such, according to our case law, PKT Housing Corporation, Marcum, and Capo, were the prevailing parties in their respective lawsuits with the Wengerts. Therefore, the trial court’s decision that there was not a prevailing party is error.

B. Attorney’s Fees under Ark. Code Ann. § 16-22-308

Because Marcum, Capo, and PKT Housing Corporation were the “prevailing parties” in this lawsuit, the court must next consider whether fees should have been awarded under the statute. Inherent in this consideration is whether the respective claims sounded in tort or in contract to determine the applicability of the attorney’s fee statute. The decision of whether to award attorneys’ fees in a contract case is governed by Ark. Code Ann. § 16-22-308, which provides in pertinent part:

In any civil action to recover on . . . breach of contract, unless otherwise provided by law or the, contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.

In determining whether PKT Housing Corporation can be awarded attorney’s fees under the statute, the trial court must decide whether the case sounded in tort or contract. Marco and Capo prevailed in defending the third-party complaints against them by the Wengerts. The Wengerts’ third-party complaints against Marcum and Capo were for breach of lease, a contract matter subject to the attorney’s fee provision under Ark. Code Ann. § 16-22-3.08.

In awarding fees under Ark. Code Ann. § 16-22-308, the trial court has broad discretion on whether to award fees, and his decision will not be reversed absent an abuse of discretion. Burnette, supra; Gill, supra. The operative word in this statute is “may.” The word “may” is usually employed as implying permissive or discretional, rather than mandatory, action or conduct and is construed in a permissive sense unless necessary to give effect to an intent to which it is used. Jones, supra; Chrisco, supra. Here, the trial court never actually exercised its discretion because it failed to find that any party was the prevailing party in this lawsuit. Here the case should be reversed and remanded for the trial judge to consider awarding reasonable attorney’s fees to PKT Housing Coporation and to Marcum and Capo under Ark. Code Ann. § 16-22-308 and costs pursuant to Rule 54(d) of the Arkansas Rules of Civil Procedure.

C. Attorney’s Fees under the lease agreement

Even if attorney’s fees could not be awarded to PKT Housing Corporation under Ark. Code Ann. § 16-22-308 due to the inclusion of the tort claim in the award, attorney’s fees can still be due under the language of the lease agreement. In Griffen v. First National Bank, 318 Ark. 848, 888 S.W.2d 306 (1994), the supreme court held that where the parties entered into a written contract that specifically provides for the payment of attorney’s fees incurred in the enforcement of the contract, the agreement is enforceable according to its terms, independent of the statutory authorization set forth in Ark. Code Ann. § 16-22-308. The lease agreement in this case contained a provision for the payment of attorney’s fees and costs in the event an action was instituted to enforce the lease. The language of the clause stated:

16. Attorney’s Fees: In the case suit should be brought for recovery of the premises, or for any sum due hereunder, or because of any act which may arise out of the possession of the premises, by either party, the prevailing party shall be entitled to all costs incurred in connection with such action, including a reasonable attorney’s fee.

Clearly, this language is very broad, and provides that the “prevailing party” would recover reasonable attorney’s fees and costs. Furthermore, this lease term does not limit the recovery of attorney’s fees to a contract matter alone, but provides instead for recovery for any action arising horn the lease or from the occupation or control of the premises.

In addition, this lease term includes the term “shall” when discussing entitlement to attorney’s fees and costs. This is quite different from the statutory entitlement to fees under Ark. Code Ann. 16-22-308, which leaves the award of fees to the discretion of the trial court. This lease term, however, appears to anticipate that the award of fees and costs “shall” be mandatory. When interpreting statutory language, for example, this court has found that the word “shall” in the statute indicates mandatory compliance with the statute’s terms unless compliance would result in an absurdity. See, e.g., Ramirez v. White County Circuit Court, 343 Ark. 372, 38 S.W.3d 298 (2001). Furthermore, the words of a contract are to be taken and understood in their plain meaning. First Nat. Bank of Crossett v. Griffin, 310 Ark. 164, 832 S.W.2d 816 (1992), cert. denied, 507 U.S. 919 (1993), appeal after remand, 318 Ark. 848, 888 S.W.2d 306 (1994); Farm Bureau Mut. Ins. Co. of Arkansas, Inc. v. Milburn, 269 Ark. 384, 601 S.W.2d 841 (1980). It appears here that the word “shall” in the attorney’s fee section of the lease agreement required a finding by the trial court of the prevailing party in the action and then required a mandatory award of reasonable attorney’s fees and costs to that party.

Marcum and Capo were not parties to the lease agreement, and they are not entitled to attorney’s fees and costs under the lease agreement. Again, the trial judge never exercised his discretion because he failed to find that any party was the prevailing party to this lawsuit. Here, the case should be reversed and remanded for the trial judge to award reasonable attorney’s fees and costs to PKT Housing Corporation pursuant to the lease agreement.

II. Marcum’s Standing to Sue on Behalf of PKT

For their cross-appeal, the Wengerts assert that the trial court erred in denying the Wengerts’ motion for judgment as a matter of law on the issue of whether Marcum could prosecute the original lawsuit on behalf of PKT Housing Corporation. During trial, the Wengerts made the motion for judgment as a matter of law, arguing that because Marcum was no longer a member of the board of directors of the PKT Housing Corporation or associated with the fraternity at the time of the filing of the lawsuit, he did not have “standing” to represent PKT Housing Corporation in its initial lawsuit against the Wengerts. The trial judge denied the motion finding that only PKT Housing Corporation, its board of directors, or its members/shareholders had the authority to challenge Mar-cum’s representation of the housing corporation in the lawsuit.

The evidence supports the finding that Marcum continued to act with the permission of the board of directors in pursuing this claim. Under Arkansas law, a corporation has the power to sue and be sued in its corporate name. Ark. Code Ann. § 4-26-204(a)(2) (Repl. 1991); Calandro v. Parkerson, 327 Ark. 131, 936 S.W.2d 755 (1997). A corporation is a legal entity which, being distinct from its members, “owns the corporate property and owes the corporate debts, is the creditor to sue or the debtor to be sued, has perpetual existence, and can act only through its duly constituted organs, primarily its board of directors.” Calandro, 327 Ark. at 136-137 (quoting Arkansas Iron & Metal Co. v. First Nat’l Bank of Rogers, 16 Ark. App. 245, 251, 701 S.W.2d 380, 383 (1985)). Generally, the officers and members of a corporation may not sue or be sued in their own name. See 19 C.J.S. Corporations § 711, at 364 (1990). A corporate officer has no individual right of action against a third party for alleged wrongs inflicted on the corporation, even if the officer is the sole shareholder. Id. § 629, at 277.

Arkansas Code Annotated § 4-26-801 (a) (Repl. 1991) states:

(a) All corporate powers shall be exercised by or under the authority of and the business and affairs of a corporation shall be managed under the direction of its board of directors, subject to any limitation set forth in the articles of incorporation.

Here, the evidence at trial indicated that at the time Marcum contacted and contracted with the attorneys to look into filing suit for the housing corporation, Marcum was still on the board of directors. It was only after that time that he and Capo disassociated from the housing corporation and from the fraternity, but the evidence indicates that the attorneys had already been hired at the authority of the housing corporation. There is no indication that the housing corporation’s continuing board of directors objected to the continuation of Marcum’s representation of the housing corporation in the lawsuit. In fact, according to Marcum, the board of directors wanted the lawsuit continued. Certainly, there was no challenge to Marcum’s standing to represent the housing corporation by any member of the housing corporation as required by Ark. Code Ann. § 4-26-205 (Repl. 1991) entitled “Defense of Ultra Vires.” Under this statutory provision, the corporations acts are deemed valid even if the corporation lacked the capacity or power to perform the act. Under the statute, only specific people are able to challenge the corporation’s acts, and the Wengerts do not occupy any of those positions. We affirm on cross-appeal.

We reverse and remand this case to the trial court with instructions to consider awarding reasonable attorney’s fees and costs to Marcum and Capo and PKT Housing Coporation under Ark. Code Ann. § 16-22-308 and Rule 54(d) of the Arkansas Rules of Civil Procedure and to award reasonable attorney’s fees and costs to PKT Housing Corporation under paragraph sixteen of the lease agreement.

       This petition for review arises from the court of appeals’ decision in Marcum v. Wengert, 70 Ark. App. 477, 20 S.W.3d 430 (2000), in which that court affirmed the trial court’s denial of attorney’s fees and denial of the appellees’ motion for judgment as a matter of law. The court of appeals found that while the trial court erred in finding no prevailing parties, attorney’s fees were not due petitioners/appellants as prevailing parties because their causes of action sounded in tort rather than contract, and the controlling statute and lease language did not provide for fees in tort claims. Furthermore, the court of appeals affirmed the trial court on appellees’/respondents’ cross-appeal finding that the appellees/respondents waived any objection to Marcum’s representation of PKT Housing Corporation by drawing them into the litigation by filing a counterclaim and third-party complaint against the appellants/petitioners, and by waiting until trial to raise the issue, thus making the objection untimely.